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[2008] ZACC 8
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Nyathi v Member of the Executive Council for the Department of Health Gauteng and Another (CCT 19/07) [2008] ZACC 8; 2008 (5) SA 94 (CC); 2008 (9) BCLR 865 (CC) (2 June 2008)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case
CCT 19/07
[2008]
ZACC 8
DINGAAN HENDRIK
NYATHI
Applicant
versus
MEMBER OF THE EXECUTIVE COUNCIL FOR
THE DEPARTMENT OF HEALTH,
GAUTENG
First Respondent
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
Second Respondent
with
CENTRE FOR CONSTITUTIONAL
RIGHTS
Amicus Curiae
Heard
on
:           30 August 2007
Decided on
:           2 June 2008
JUDGMENT
MADALA J:
Introduction
[1]
Sitting in the Pretoria High Court (the High Court),
Davis AJ made the following order in favour of the applicant in this matter on
30 March 2007:
“1.
The following portion of
Section 3
of the
State Liability Act No. 20 of 1957
,
is hereby declared to be inconsistent with the Constitution of the Republic of
South Africa and therefore invalid:
‘No execution, attachment or like
process shall be issued against a defendant or a respondent in any such action
or proceedings or
against the property of the state . . . ’
2.
The First Respondent is ordered to pay the costs of the application on the
scale
as between attorney and client, such costs to include the costs of two
counsel”.
[1]
[2]
In terms of section 172(2)(a) of the Constitution,
[2]
an order of constitutional invalidity in the High Court has no force or effect
unless it has been confirmed by this Court.
It is the confirmation of
that order that is sought by the applicant in these proceedings.  Sections
172(2)(a) and 167(5)
[3]
of the
Constitution mandate this Court to make orders of confirmation in relation to
the declaration of constitutional validity of
court orders and Acts of
Parliament.
[3]
Section 3
of the
State Liability Act (the
Act)
[4]
reads as follows:
“No execution, attachment or like process
shall be issued against the defendant or respondent in any such action or
proceedings or
against any property of the state, but the amount, if any, which
may be required to satisfy any judgment or order given or made against
the
nominal defendant or respondent in any such action or proceedings may be paid
out of the National Revenue Fund or a Provincial
Revenue Fund as the case may
be.”
[4]
At the time this application was made, the applicant
was permanently disabled and unemployed.  He passed away on 4 July 2007,
before the matter was heard on an urgent basis before this Court.  Shortly
before the hearing on 30 August 2007, Lemyiwe Angelina
Nyathi, the applicant’s
wife, successfully applied to this Court to be substituted for the applicant.
[5]
The first respondent is the Member of the Executive
Council for the Department of Health, Gauteng.  The second respondent is
the Minister of Justice and Constitutional Development.  Both respondents have
been cited in their nominal capacities and are
represented by the office of the
State Attorney.  The second respondent is the national executive authority
responsible for
the administration of the Act.  A litigant such as the
applicant in this matter brings the relevant national or provincial department
before a court by citing the political head of that department as provided for
in
section 2
of the Act.
[5]
[6]
In time, the Centre for Constitutional Rights (the
CFCR) applied to be admitted as amicus curiae and was granted its request to
present
written and oral submissions before this Court.  We are indebted
to the CFCR for its assistance.  The application for confirmation
is
strenuously opposed by the respondents.
Factual background
[7]
On 1 August 2002, the applicant suffered 30 percent
second and third degree burn wounds after a paraffin stove was thrown at him.
He was subsequently admitted at the Pretoria Academic Hospital for treatment where a central venous line was incorrectly inserted
into his right
carotis communis artery.  On 2 August 2002, he was transferred to Kalafong Hospital in Pretoria where the medical
personnel failed to timeously diagnose the
incorrect insertion of the central venous line.  As a result of the
omissions and
mistakes made by the medical personnel at the two hospitals, the
applicant suffered a stroke and severe left hemiplegia.  He
then required
full time care and medical treatment and was also liable for the payment of the
medical expenses and the ensuing legal
fees.
[8]
The applicant used to receive a social grant of R570
per month and his wife’s total monthly income was R1 600.  The applicant
and his wife also had to support their four children and provide for their
daily living expenses.
[9]
On 25 July 2005, the applicant instituted action in the
High Court against the first respondent, claiming damages in the sum of R1
496
000 for the pain caused by the stroke and disability suffered as a result of
the negligent and improper care administered to
him at the two hospitals.
The first respondent initially resisted the applicant’s claim, but later
admitted liability.  The
only remaining issue was the amount payable to
the applicant.
[10]
On 27 July 2006, the applicant’s attorneys wrote a
letter to the State Attorney stating that the applicant’s health was
deteriorating
rapidly and that he urgently required treatment and medication.
They stated further that the applicant could not afford to
pay the
necessary medical and legal costs while the hearing scheduled for 23 May 2007
was pending.  They requested therefore
an interim payment of R317 700
and itemised how the amount was arrived at.  It was stated further that
should payment not
be forthcoming within 14 days of the letter, they would
approach the Court for relief.
[11]
On 3 August 2006, the State Attorney reported that it
had referred the matter to the first respondent and that he was of the opinion
that it would not be necessary to proceed by way of Uniform
Rule 34A.
[6]
The first respondent consequently asked for one week’s indulgence within which
to pay.
[12]
On 23 August 2006, the State Attorney informed the
applicant’s attorneys that the first respondent had refused to make the interim
payment and had instead resolved to pay an amount of R500 000 as full and
final settlement of the applicant’s claim.  The
settlement offer was
rejected by the applicant.
[13]
On 30 August 2006, the State Attorney advised the
applicant’s attorneys that the first respondent was taking issue with paying
the
requested amount as an interim payment instead of a final payment.  It
was stated further by the State Attorney that the first
respondent did not
dispute that it might in future be liable for payment but in the circumstances
requested that payment be deferred
until the trial Court had decided the issue
of costs.
[14]
In September 2006, having received no further response
from the first respondent, the applicant lodged an application in terms of
Uniform
Rule 34A
and served it on the State Attorney during October 2006.
The matter was unopposed and the Court ordered the first respondent
to make an
interim payment to the applicant in the amount of R317 700 and to pay the
applicant’s costs on the attorney and client
scale.
[15]
The applicant, having received no payment, sent a copy
of the court order together with a letter to the State Attorney on 1 December
2006 by registered post.  The letter stated that should the first
respondent fail to comply with the court order within the
prescribed 30 day
period, the applicant’s attorneys would proceed with an application to compel
them to do so.  The first respondent
failed to comply with the court
order.
History of state liability in
South Africa
[16]
The concept of state liability in South Africa was statutorily introduced in terms of the Crown Liabilities Act.
[7]
The section relating to the attachment of the assets of the state is
fundamentally similar to the impugned section in the
State Liability Act.
The
High Court found the two pieces of legislation to be so similar that the
case law in relation to the one applied to the other, and
this conclusion
cannot be doubted.  The courts have grappled with the issue over many
years; however, it is only in recent years
that the courts have been faced with
a flood of litigation of this magnitude in respect of unsatisfied court orders.
[17]
This legislation was in line and compatible with the
doctrine of parliamentary supremacy.
[8]
It was important
in order to prevent execution, attachment or a similar process when the state
was sued for damages or contract.
It still does however create
difficulties for a judgment creditor.
[18]
The Act is a relic of a legal regime which was
pre-constitutional and placed the state above the law: a state that operated
from the
premise that “the king can do no wrong”.
[9]
That state of affairs ensured that the state and, by parity of reasoning, its
officials could not be held accountable for their
actions.
High Court proceedings
[19]
The failure to comply with the court order compelled
the applicant once again to lodge an application before the High Court on 21
February 2007.  The application was in compliance with the provisions of
Uniform Rule 10A,
[10]
in which the applicant joined the
Minister of Justice and Constitutional Development.  An order was sought
in the following
terms:
“2.
[It] is declared that
Section 3
of
the
State Liability Act, 20 of 1957
, is inconsistent with the Constitution of
the Republic of South Africa.
3.
First Respondent is ordered to comply with the court order dated 22 November
2006
within 3 days of this order, failing which the Applicant may approach this
court on the same documents, amplified where necessary,
for an order declaring
the First Respondent to be in contempt of court and an order committing the
First Respondent to gaol for a
period of 90 days.
4.
Costs of suit on the scale as between attorney and own client . . . .”
[20]
Davis AJ observed that despite the lapse of all
relevant time periods as set out in the Rules, the respondents had not filed a
notice
of intention to defend nor any answering affidavit.  This failure
to abide by the Rules occurred even after the applicant had
delivered a notice
to the Registrar of the High Court in terms of Uniform Rule 16A.
[11]
The respondents did not
respond to the notice despite it being properly served and, consequently, the
matter was heard as an
unopposed urgent application.  The Court a quo was
“satisfied that a sufficient degree of urgency existed meriting the limited
non-compliance with the Rules.”
[12]
[21]
A handwritten note from the State Attorney to the applicant’s
attorneys more than 14 days before the hearing of the application indicated
that the State Attorney knew of the hearing but had defaulted in
appearance.  The applicant’s attorneys had also telefaxed a
letter to the
State Attorney stating that, should they not receive payment by 26 March 2007,
they would proceed with the High Court
application scheduled for 27 March 2007.
[22]
As at the date of the hearing, no payment had been made
by the first respondent despite repeated telephone calls from the applicant’s
attorneys.  The first respondent’s default in appearance was a cause for
grave concern in the High Court.  The High Court
found this to be
especially disconcerting as the State Attorney had been contacted and informed
on the day of the hearing that the
matter would proceed unopposed in motion
Court.  The Court proceeded to hear the matter having found that the
applicant had
done everything that could be expected in the circumstances to
inform the respondents and was therefore entitled to have the matter
heard.
[23]
The High Court stated that as the judgment for interim
payment in favour of the applicant was one sounding in money, the appropriate
remedy would have been to levy execution and not proceed with contempt
proceedings.
[13]
The Court pointed out that
this was, however, precluded by section 3 of the Act.  It added that the
section would perhaps
only allow for a declaration of unlawfulness or a finding
of contempt but with no real further enforceability, such as committal.
It considered the Crown Liabilities Act, the predecessor of the
State Liability
Act, and
also considered the relevant case law.  It found the case law to
be equally applicable to the Act and held that both pieces
of legislation
merely placed a moral obligation on the state to satisfy judgment debts.
[24]
The High Court
[14]
found that
sections
34
,
[15]
165(5)
[16]
and
195(1)(f)
[17]
of the Constitution had been
violated.
[18]
It observed that the blanket
ban in section 3 of the Act constitutes a material limitation of the right to
access to courts
and the consequent right to have the effects of successful
access implemented.  The High Court concurred with a number of judgments.
[19]
Davis AJ relied on Froneman
J’s reasoning in
Kate
,
[20]
that the alternative reading, namely
that
section 3
of the
State Liability Act also
forbids these orders of ensuring
compliance with court orders, effectively means that this section places the
government above the
law insofar as the binding nature of court orders are
concerned. Such a reading would make
section 3
unconstitutional and a clear
violation of section 165(5) of the Constitution.
[21]
As the order of the High Court declared invalid a provision of an Act of
Parliament, the applicant approached this Court for
confirmation of that order.
In this Court
[25]
The matter was set down for hearing on 4 May
2007.  On the day of the hearing, the interim payment ordered by the High
Court
had not been made.  The Court engaged with counsel regarding the
non-payment at the commencement of the hearing and the respondents
thereafter
gave assurances that the payment would be made.  The interim payment was
made on the same day.  The State Attorney
was directed to furnish an
explanation for the tardiness of her department in complying with the High
Court order.  The matter
was set down for hearing on 30 August 2007.
The applicant’s submissions
[26]
The applicant’s main submission is that section 3 is unconstitutional
because it prevents the attachment of the assets of the state
despite a court
order and should therefore be struck down as being invalid.  The applicant
also submitted that it is not appropriate
or effective to enforce a contempt
order against a nominal defendant.  It was asserted that execution is the
most appropriate
and effective remedy.  It was submitted that the red tape
and bureaucracy of the state also makes it difficult to enforce contempt
of
court proceedings since the relevant state official cannot always be
identified.
[27]
As to the question whether individuals can claim from
the National Revenue Fund and the Provincial Revenue Fund (the funds), the
applicant
said that the word ‘may’ in section 3 is discretionary, and even if
it is interpreted as ‘must’, there still needs to be an Act of
Parliament to
enable one to claim from the funds.  The applicant also said that the
provisions of section 213(2) of the Constitution
[22]
precludes one from getting money from the funds unless legislation is enacted
to that effect.  It was also said that it would
be difficult to obtain
money from the funds given the inefficiency of state departments and their
defiance in complying with court
orders.  The applicant submitted that
execution would be a more expeditious manner of obtaining satisfaction as
compared with
claiming from the funds.  In terms of the attachment of
assets of the state, the applicant submitted that concerns about the
attachment
of essential assets of the state would be allayed by the fact that there would
be mechanisms put in place to ensure that
essential assets are not
attached.  The applicant further submitted that the first respondent
violated his rights to equality,
dignity and access to courts as enshrined in
the Constitution.
The respondents’ submissions
[28]
The first respondent submitted that section 3 does not
violate the constitutional principle that orders and decisions of court bind
all persons including organs of state, as it only provides that the normal
means of execution are not applicable to cases where the
provincial or the
national government is the judgment debtor.  They submitted further that
it will be highly prejudicial to
the public interest should the assets of the
state be attached or sold in execution of a judgment debt.  The
respondents cited
various countries in which no attachment and execution may be
effected against state property.
[23]
They contended
that the applicant was able to vindicate his rights by accessing the judicial
system and his right of access
to courts is not precluded by the application of
section 3.  However, certain other countries provide for the issuing of a
certificate
to a relevant officer.
[24]
[29]
The respondents further submitted that section 3 must
be read together with the Public Finance Management Act, as amended,
[25]
(the PFMA), which is designed to
regulate financial management in the national and provincial government
together with treasury instructions,
which represent an important statutory
recognition of the need for the national and provincial governments to comply
with court orders
promptly.  They submitted that section 3 expressly
authorises payment of a judgment debt sounding in money out of the funds,
and
further that in any event there are other remedies available to an aggrieved
applicant such as a mandatory order, committal for
contempt of court and a
claim for damages.
[30]
They further argued that in the event of non-compliance
with a court order by an organ of state, such non-compliance can be reported
to
the Auditor-General or the Public Protector who have powers to investigate
complaints regarding any alleged maladministration
or improper conduct or undue
influence by a person performing a public function.
Submissions of the amicus
[31]
It was advanced on behalf of the CFCR that section 3 of
the Act is constitutionally compliant and that a finding of unconstitutionality
would not be in the interests of the state.  It was submitted that section
3 proscribed the attachment of state property - the
critical point is that
property does not include money.  Therefore, judgment creditors can also
look to the funds to satisfy
judgment debts.
[32]
The amicus further submitted that an urgent
mandamus
is a quicker, cheaper, efficient and more back-straightening method of getting
satisfaction of a judgment debt rather than the slow,
expensive, labouring
steps in levying execution.  It also urged us to adopt the reasoning in
Magidimisi,
[26]
as it strikes a balance between
protecting the assets of the state against execution while allowing unpaid
judgment creditors to
get satisfaction of judgments by holding recalcitrant
public servants to account.
[33]
In
Magidimisi
, the applicant was seeking an
order compelling the respondents to fulfil their constitutional and statutory
obligations to comply
with court orders against the province, by not only
taking the steps necessary to ensure payment of the sums owing by the province
to the applicant and others, but also by requiring the respondents to report to
the court the manner and extent of their compliance.
[27]
Froneman J granted a
mandamus
with a structural interdict.
However, I share the applicant’s view that the
Magidimisi
solution
does make section 3 unconstitutional, as an invitation to a judgment creditor
to seek a
mandamus
defies the harsh realities of litigation with its
inherent concomitant risks and expenses.
The constitutional issues
[34]
The issues raised in this case are of fundamental
importance to the maintenance of our constitutional dispensation.  These
issues
can be delineated as follows:
(i)
Whether section 3 of the Act limits any of the rights in the Constitution; and
if so
(ii)
Whether the limitation is reasonable and justifiable;
(iii)
The proper interpretation of section 3; and
(iv)
The remedy to which the applicant is entitled.
[35]
This Court is mandated to consider this application
since it is an application for confirmation of an order of constitutional
invalidity.
[28]
There is a general acceptance
by all parties in the matter that there are constitutional issues at stake; the
applicability
of the Constitution in this matter therefore cannot be denied.
(i) Whether section 3 of the Act
limits any of the rights in the Constitution
[36]
Section 3 of the Act precludes attachment of the assets
of the state and has been challenged by the applicant because it prevents
the
enforceability of court orders and therefore limits the applicant’s right to
life, dignity, equality and access to courts.
[37]
In this Court, the applicant contended that section 3
is inconsistent with the Constitution because it violates sections 8, 9(1),
34,
165, 173 and 195(1)(f) of the Constitution.  In the light of the view I
take it is not necessary to consider all these challenges.
It will be
sufficient to focus on the provisions of sections 9 and 10 of the Constitution
as these challenges largely overlap.
[38]
Section 9(1) of the Constitution provides that everyone
is equal before the law and has the right to equal protection and benefit
of
the law.
[39]
It was submitted that section 3 makes an unjustifiable
differentiation between a judgment creditor who obtains judgment against the
state and a judgment creditor who obtains a judgment against a private
litigant.  This submission is sound.
[40]
A judgment creditor who obtains judgment against a
private litigant is entitled to execute against a private litigant in order to
obtain satisfaction of the judgment debt.  However, a judgment creditor
who obtains judgment against the state is expressly
prohibited from executing
against state property in order to obtain the satisfaction of the judgment
debt.  The effect of this
differentiation is that section 3 disallows a
judgment creditor who obtains judgment against the state the same protection
and benefit
that a judgment creditor who obtains judgment against a private
litigant enjoys.
[41]
The differentiation made by section 3 must of course be
viewed against the provisions of sections 8, 34 and 165(5) of the
Constitution.
Section 8(1) provides that t
he
Bill of Rights applies to all law, and binds the legislature, the executive,
the judiciary and all organs of state.  Section
34 guarantees everyone the
right to have any dispute that can be resolved by the application of law
decided in a fair public hearing
before a court.
Section 165 of
the Constitution provides:
“(1)      The judicial authority of
the Republic is vested in the courts.
(2)
The courts are independent and subject only to the Constitution and the law,
which they
must apply impartially and without fear, favour or prejudice.
(3)        No person or
organ of state may interfere with the functioning of the courts.
(4)        Organs of
state, through legislative and other measures, must assist and protect the
courts to ensure the independence, impartiality, dignity, accessibility and
effectiveness of the courts.
(5)        An order or
decision issued by a court binds all persons to whom and organs of state
to
which it applies.”
[42]
The effect of sections 8, 34 and 165, in particular, 165(5) is that an
order issued by a court is binding on all persons to whom and
organs of state
to which it applies.  These provisions of the Constitution do not treat
state litigants differently from private
litigants.  In
De Lange v
Smuts NO and Others
,
[29]
Ackermann J said the following
concerning the obligation of the state to assist persons to enforce civil
claims against debtors:
“In a constitutional democratic
state, which ours now certainly is, and under the rule of law (to the extent
that this principle is
not entirely subsumed under the concept of the
constitutional state)
‘citizens as well as non-citizens are
entitled to rely upon the state for the protection and enforcement of their
rights.  The
state therefore assumes the obligation of assisting such
persons to enforce their rights, including the enforcement of their civil
claims against debtors.’
”  (Footnote omitted.)
[43]
Deliberate non-compliance with or disobedience of a court order
by the state detracts from the
“dignity, accessibility and effectiveness of the courts.”  Yet
section 165(4) of the Constitution expressly imposes an obligation
on organs of
state “through legislative and other measures [to] assist and protect the
courts to ensure the dignity, accessibility
and effectiveness of the
courts.”  Indeed in
Mjeni,
Jafta J had the following to say:
“A deliberate
non-compliance or disobedience of a court order by the state through its
officials amounts to a breach of [a] constitutional
duty [imposed by section
165 of the Constitution].  Such conduct impacts negatively upon the
dignity and effectiveness of the
Courts . . . .The constitutional right of
access to courts would remain an illusion unless orders made by the courts are
capable
of being enforced by those in whose favour such orders were made.
The process of adjudication and the resolution of disputes
in courts of law is
not an end in itself but only a means thereto; the end being the enforcement of
rights or obligations defined
in the court order.  To a great extent s 3
of Act 20 of 1957 encroaches upon that enforcement of rights against the state
by
judgment creditors.”
[30]
In
East London
Local Transitional Council v MEC for Health EC and Others,
Ebrahim J agreed
with Jafta J that—
“[p]ublic officials and even
Ministers of State may be held in contempt of Court in matters such as the
instant one.  But, in
my view, there is a further reason for concluding
that contempt proceedings are justified against them even though the judgment
is
for payment of a debt.”
[31]
[44]
Section 3
effectively places the state above the
law.  The section, as it stands, does not positively oblige the state to
comply with
court orders as it should.  This is not compatible with the
plain language of sections 8, 34, 165(4) and (5) of the Constitution.
[45]
The right to dignity entails the right to have one’s
dignity respected and protected.
[32]
The
circumstances of this case show the potential that section 3 has for the
limitation of the right to dignity.  The
applicant was made to wait for an
extremely long time for money required to pay for his treatment.  Without
the rehabilitative
treatment, he stood a very slim chance of survival. The
state was made fully aware of this very desperate situation but provided
no
relief.  He was then unable to attach state assets due to the operation of
section 3.  It certainly cannot be said,
in these circumstances, that the
applicant was treated in a manner that showed recognition for his worth and
importance as a human
being.  The state is under a duty to ensure that an
individual’s right to life is not infringed and is also under a duty to
ensure
that this right is protected.
[33]
The state knew how vital the
treatment was to the applicant yet did not act to ensure that he received it.
[46]
Having waited for many months, the applicant eventually
received interim payment, but only lived for a short while thereafter.
Reliance on the state’s goodwill and moral standards has in this case proved to
be futile.  Whether this denial is justified
is a separate question that
needs to be considered in light of the respondents’ submissions on the
protection of state interests
and the circumstances of this case.
[47]
Section 3 does not, therefore, treat judgment creditors
as equal before the law.  It also violates the dignity provisions of
section 10.  For all these reasons, I conclude that section 3 limits the
right to equality before the law and the right to equal
protection and benefit
of the law guaranteed by section 9(1) and the right of access to courts
guaranteed by section 34 of the Constitution.
It now remains to consider
whether such limitations are reasonable and justifiable under section 36(1) of
the Constitution.
(ii) Whether such limitation is
reasonable and justifiable
[48]
One of the issues to be investigated by this Court,
therefore, is whether the attachment provision in section 3 of the Act is
reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom.  The nature and purpose of the
rights of
access to courts, equality, freedom; the democratic principles of state
accountability; and the rule of law are important
aspects of the Constitution
which are implicated in this matter.
[49]
It was argued on behalf of the respondents that if this
Court held that the impugned section infringed any of the rights allegedly
trumped by it and in particular sections 9 and 34 of the Constitution, then
such infringement is justifiable in terms of section
36(1)
[34]
of the
Constitution.  The respondents argued that it is trite that the
applicant’s rights in the Bill of Rights, important as
they may be to our
constitutional democracy, may nonetheless be constitutionally limited where
that limitation serves a legitimate
and acceptable purpose and there is
sufficient proportionality between the harm done by the legislation and the
good sought to be
achieved.
[35]
[50]
It is my view that the limitation imposed by section 3,
with regard to attachment of state assets, is neither reasonable nor
justifiable
in these circumstances.  Furthermore, the respondents’
argument that the limitation is reasonable and justifiable because it
serves to
protect essential state assets from being attached is not convincing.  In the
case of
S v Bhulwana,
[36]
it was held
that when considering the legitimacy of a limitation that:
“[T]he Court places the purpose, effects and
importance of the infringing legislation on one side of the scales and the
nature and
effect of the infringement caused by the legislation on the
other.  The more substantial the inroad into fundamental rights,
the more
persuasive the grounds of justification must be.”
[37]
[51]
Section 3 serves to protect the state interests by
disallowing attachment as it has the potential to disrupt service delivery and
interfere with the state’s accounting procedures.  I agree that the
attachment of certain state assets, for example ambulances
and dialysis
machines, would severely disrupt service delivery and would also unjustifiably
limit the rights of many other individuals.
There are few countries which
allow such attachment and even if it is allowed, there is very specific
legislation which prescribes
the assets which can be attached, such assets
being deemed to be non-essential to the proper functioning of the state.
[38]
The respondents have therefore
made very valid submissions in this regard.  The respondents have,
however, not made lack
of resources an issue in this case.
[52]
The Act does purport to make the state liable for
judgment debts that accrue against it.  However, the processes involved in
gaining satisfaction of such debts are not in place.  The doors are closed
before compliance has been achieved.  An in-depth
analysis of case law in
regard to state liability has revealed that at the core of the issue is a
problem which can be located in
the legislation as well as within state
departments.
[39]
The legislative provision
prevents the attachment of state assets but it does not inhibit a state’s
ability to pay a judgment
debt.  This matter has also revealed the flaws
within the office of the State Attorney.  There is a desperate need for
change within these departments, and such change will be monitored by this
Court.
(iii)
The
proper interpretation of section 3
[53]
The analysis of section 3 of the Act needs to be
considered in light of the abovementioned facts.  The effectiveness of the
existing
procedures in regard to the satisfaction of judgment debts is
essential in determining whether the section is constitutionally
compliant.
Section 3 of the Act prevents attachment of state assets but
provides for claims to be made against the funds.  In regard to
claiming
from the funds, there are various provisions in the PFMA and Treasury
Regulations which are supposedly designed to assist
a judgment creditor in
claiming from the funds.
[54]
The respondents submitted that the PFMA and the
Treasury Regulations (the Regulations) made thereunder contain sufficiently
accessible
procedures for payment of judgment debts.
[40]
The PFMA
[41]
was enacted in order to administer
and control the National and Provincial Treasuries.  The provisions
relating to the payment
of debts owing against the state are discussed below.
The PFMA and Regulations are not concerned with the payment of debts
generally, but with the settlement of claims by or against the state.
[55]
Section 76(1)(h) of the PFMA states that:
“(1)      The National Treasury must make
regulations or issue instructions applicable to departments, concerning—
.
. .
(h)        the settlement of claims by or
against the state.”
The Regulations enacted in terms of
section 76(1)(h) provide for claims against the state through acts and omissions.
Regulation
12.2.1 provides:
“An institution must accept liability for
any loss or damage suffered by another person, which arose from an act or
omission of an
official as a claim against the state and does not recover
compensation from an official”.
Regulation 12.2.4 provides that the
State Attorney may only obligate the funds of an institution with the prior
written approval of
the accounting officer.
[56]
Section 76 goes on to provide for claims by the state
against other persons, claims by officials against the state and losses and
damages incurred by the state.  It does not deal any further with the
settlement of claims.  More importantly, it does
not contain any
procedures relating to how orders of court are to be settled.  Legislation
must set out the procedures required
for the implementation of the state’s
obligations, as dictated by the Constitution.  These procedures, vital to
our democracy
founded on the rule of law, are absent here.
[57]
In a different section of the Regulations, provision is
made for payment of debts within 30 days.
[42]
This provision has been cited extensively by the respondents in an attempt to
prove the constitutionality of section 3.
[43]
However, in my view, it is of no practical value to a judgment creditor
because there are no procedures setting out how a litigant
is to approach the
Treasury or whom to contact.
[58]
The respondents’ submissions in regard to the PFMA and
the Regulations cannot be accepted.  The procedures referred to are
inaccessible
to the majority of creditors and are far too complex to constitute
a reasonable fulfilment of the state’s obligations in terms of
the
Constitution.  The section does not deal at all with how court orders are
to be satisfied.
The response of courts to
section 3
[59]
An assessment of the cases that have dealt with the Act
and the liability of the state for its negligent actions have revealed that
courts have been facing immense challenges in this area of the law.  The
various High Courts have approached the matter very
differently and with
disparate consequences.
[44]
However, the common
denominator is that judicial officers have recognised that there is a serious
problem caused by the fact
that a judgment creditor who obtains an order
sounding in money, may find that order unenforceable against the state.
[60]
In more recent years, and in particular the period from
2002 onwards, courts have been inundated with situations where court orders
have been flouted by state functionaries, who, on being handed such court
orders, have given very flimsy excuses which in the end
only point to their
dilatoriness.  The public officials seem not to understand the integral
role that they play in our constitutional
state, as the right of access to
courts entails a duty not only on the courts to ensure access but on the state
to bring about the
enforceability of court orders.
[45]
[61]
In the case of
Mjeni
,
[46]
Jafta
J found it necessary to make innovative changes to the existing law and to
interpret the law as widely as possible.  The
Court located the constitutional
duty that bound the state to pay in section 165 of the Constitution.
[62]
The various courts across the land have tried to engage
with this problem as best as possible and some have crafted innovative remedies,
including the recognition of a
mandamus
, which would essentially order
the head of the state department to comply with court orders.
[47]
However, this judicial interpretation has sometimes been met with significant
confusion and uncertainty.  In an attempt
to find a proper solution to the
problem, courts have entangled themselves in a maze of arbitrary
classifications in so far as the
law on state liability is concerned.
[63]
In my view, there can be no greater carelessness,
dilatoriness or negligence than to ignore a court order sounding in money, even
more so when the matter emanates from a destitute person who has no means of
pursuing his or her claim in a court of law.  But
we now have some officials
who have become a law unto themselves and openly violate people’s rights in a
manner that shows disdain
for the law, in the belief that as state officials
they cannot be held responsible for their actions or inaction.  Courts
have
had to spend too much time in trying to ensure that court orders are
enforceable against the state precisely because a straightforward
procedure is
not available.
Conduct of the State Attorney
[64]
It is here necessary to consider the manner in which
the applicant sought to enforce the judgment debt against the state.  The
applicant approached the State Attorney and requested payment of the money
owed.  The State Attorney promised to pay and then
failed to do so.
[48]
Reasons were not given for the
failure to pay nor did the State Attorney offer any guidance as to when payment
would be made.
[65]
The State Attorney then indicated that its client, the
first respondent, had decided to bring an application for rescission but could
not indicate the basis of such application nor the reason for the
instruction.  This protracted correspondence all occurred
whilst the
applicant’s health deteriorated steadily.  The applicant requested to
communicate directly with the first respondent
and thereafter contacted the
senior legal administrator in the first respondent’s department.
Communications failed between
the parties and explanations as to the lack of
payment were still not forthcoming.  The interim payment sought by the
applicant
was only received when this Court made a request for such payment to
be made.
[66]
The fact that payment was only made once the applicant
approached this Court for relief reflects the fact that the current procedure
of approaching the State Attorney is not effective.  There are multiple
state institutions involved in the authorisation and
administration of debts
against the state and this has contributed significantly to the delays in this
matter and related matters.
It is a convoluted and difficult method which
is, as is evident in this matter, largely unsuccessful.
[67]
It is evident from the factual matrix before us that
there is a breakdown in communication between the office of the State Attorney
and the first respondent.  The first respondent is the client of the State
Attorney yet there is much ‘bureaucratic bungling’
which impedes the delivery
of justice.  There is no need for such delays when there is already in
existence a court order for
payment.
[68]
An affidavit was presented on behalf of the State
Attorney’s office indicating the reasons for its failure to file an appearance
to
defend in the High Court, as well as its failure to inform the relevant
state officials of the outstanding judgment debts.
The reasons given are
largely unsatisfactory and provide no real solution to problems within the
department.
[69]
These reasons have, however, been taken into
consideration, yet it must be noted that this Court commented on this very
problem over
a year ago in the
Liquor Traders
case.
[49]
Precious little has since been done to rectify the situation and I cannot
accept further excuses for the ineptitude, especially
after the State Attorney
has been made fully aware of the alarming state of affairs.  In
Liquor
Traders,
this Court made the following remarks with regard to the
inefficiency of the State Attorney:
“It is serious because as a matter of
common practice it is the State Attorney who is briefed by the government when
it is involved
in litigation.  Given the government’s responsibility to
assist the work of courts, a lapse of this sort in the State Attorney’s
office
gives cause for grave concern.”
[50]
In that case, this Court ordered
costs against the office of the State Attorney
de bonis propriis
on the
scale as between attorney and client, and not personally against the attorney
concerned.
[51]
The costs order was
indicative of the Court’s displeasure and was “primarily directed against the
office of the State
Attorney in Pretoria whose systems of training and
supervision appear to be woefully inadequate.”
[52]
Relying on the moral obligation of the State Attorney and the Department of
Justice to improve the state of affairs has been
an exercise in futility.
I, accordingly, find that the relevant state institutions should take steps to
rectify the problems
highlighted above and report back to this Court as to the
progress made.
[70]
The respondents have made various submissions about the
manner in which the conduct of state functionaries can be dealt with.
They have referred to the provisions of the PFMA and the Regulations as well as
to the option of instituting contempt of court proceedings
against the relevant
officials.  These options are considered below.
[71]
The PFMA read with the Regulations provides for
disciplinary proceedings to be instituted against the relevant accounting
officer
or official and also makes provision for the conduct to be regarded as
a criminal offence.
[53]
Section 85(1)(b), (c) and (d)
of the PFMA read with Regulation 33 deal with financial misconduct.
Section 85(1) reads
as follows:
“(1)      The
Minister must make regulations prescribing—
(a)        the manner, form and
circumstances in which allegations and disciplinary and criminal
charges of
financial misconduct must be reported to the National Treasury and the
Auditor-General, including—
(i)
particulars of the alleged misconduct;
(ii)        the steps taken in
connection with such financial misconduct;
(b)        matters relating to
the investigation of allegations of financial misconduct;
(c)        the circumstances in
which the National Treasury may direct that disciplinary steps
be taken or
criminal charges be laid against a person for financial misconduct;
. . . .  ”
Section 85 is to be read with Regulation 33.1 which provides the
following:
“33.1.1  If an employee is alleged to have committed financial
misconduct, the accounting authority of the public entity must
ensure that an
investigation is conducted into the matter and if confirmed, must ensure that a
disciplinary hearing is held in accordance
with the relevant prescripts.
33.1.2   The accounting authority must ensure that the
investigation is instituted within 30 days from the date of discovery
of the
alleged financial misconduct.
33.1.3   If an accounting authority or any of its members
is alleged to have committed financial misconduct, the relevant
executive
authority must initiate an investigation into the matter and if the allegations
are confirmed, must ensure that appropriate
disciplinary proceedings are
initiated immediately.
33.1.4   The relevant treasury
may, after consultation with the executive authority,—
(a)        direct that a person
other than an employee of the public entity conducts the investigation;
(b)        issue any reasonable
requirement regarding the way in which the investigation should
be performed.”
[72]
These procedures are internal disciplinary procedures
which are to be handled by the relevant Head of Department or the
Treasury.
There has been no indication by the second respondent as to
whether these mechanisms are in fact implemented or whether they are
effective.  In light of the persistent inefficiency within the state
departments, these procedures have not proven to be of
any assistance.
[73]
The provisions of the PFMA and the subsequent
Regulations are not, in my view, designed to effectively deal with accounting
authorities
who disobey court orders.  The relevant sections make
provision for disciplinary proceedings following upon financial misconduct
and
criminal proceedings in the event that a state functionary fails to comply with
the broad objectives of the PFMA.  Whether
or not financial misconduct
includes the failure to pay judgment debts is not set out clearly.
[74]
There is a desperate need for legislation to be enacted
that will specifically target the areas of concern outlined in this
judgment.
The apathy of state officials in their failure to pay judgment
debts cannot be addressed unless progressive, targeted steps are taken
towards
solving these problems.
[75]
In regard to the possibility of contempt proceedings
being instituted against state functionaries, one must bear in mind that these
proceedings would have to be instituted by the judgment creditor once the
relevant state functionary fails to pay the monies owed.
[54]
The judgment creditor would have to obtain a
mandamus
order and if the
state functionary does not comply with the
mandamus
then he or she would
be held in contempt of court.  This process is a tedious one which places
an onerous burden on the judgment
creditor and does not translate into money in
the pocket for the judgment creditor.  Once a litigant is in possession of
a judgment
debt, he or she should not be expected to pursue the payment thereof
ad infinitum
.  One cannot expect the creditor who has already gone
to a great deal of trouble, and spent both time and money in litigation,
to
launch contempt of court proceedings against the defaulting state official in
the knowledge that such proceedings are unlikely
to ensure that the debt is
ultimately paid.  This is too onerous a burden to place upon a successful
litigant.
[55]
The state needs to take
responsibility for its employees and ensure that defaulting state officials are
subject to the disciplinary
action as envisaged in the legislation and
regulations.
[76]
The English Courts have looked at the possibility of
holding officials responsible for wrongs that they have committed in their
official
capacity.
[56]
They proceed on the premise
that, in committing the wrongs, such officials are stepping outside of the
realm of protection
afforded to public officials under the Crown Proceedings
Act.
[57]
The possibility of a similar
route in South Africa is, however tempting, impractical.  The committal of
public officials
would only result in the ‘naming and shaming’ of such
officials and would produce no real remedy for the aggrieved litigant who is
primarily concerned with the payment of the judgment debt.  The potential
disruption of already overburdened state departments
is also a result which
should be avoided.
[77]
The problems faced in this matter are different.
First, the procedures and mechanisms required to enforce claims against
the
funds are lacking and this needs to be addressed with due consideration of
the competing interests involved in this matter.
[78]
Secondly, state administration is inefficient and
ineffective.  The conduct of state officials undermines the legitimacy of
both
the judiciary and the state.  Generally, relevant state departments
are in the best position to assess the magnitude of the
problems faced by their
personnel and are similarly in the best position to address the systemic
failure of state officials to perform
their duties.  These state
institutions need to look at these failings holistically and consider the best
manner in which to
deal with the problems at hand.  This Court is not in a
position at this stage to assess the problems faced.
(iv) Appropriate remedy
[79]
The practical effect of section 3 is that the state
cannot be forced to honour court orders as there is no manner in which
compliance
can be enforced.  In the result, the ordinary citizen has no
effective remedy available in a situation where the state and its
officials
fail to comply with a court order.  In terms of contempt proceedings the
High Court found that section 3 of the Act
does not mean that a Minister cannot
be arrested for contempt of court.  It was held that Ministers of State
and other public
officials can in fact be held in contempt in the exercise of
the courts’ inherent power to protect and regulate their process, especially
in
light of section 173 of the Constitution.
[58]
However, contempt of court proceedings do not put money in the pocket or food
on the table.
[80]
Certain values in the Constitution have been designated
as foundational to our democracy.
[59]
This in turn
means that as pillar-stones of this democracy, they must be observed
scrupulously.  If these values are not
observed and their precepts not
carried out conscientiously, we have a recipe for a constitutional crisis of
great magnitude.
In a state predicated on a desire to maintain the rule
of law, it is imperative that one and all should be driven by a moral
obligation
to ensure the continued survival of our democracy.  That, in my
view, means at the very least that there should be strict compliance
with court
orders.
[81]
The state’s function is to execute its duties in terms
of the relevant legislation.  The failure of the state to edify its
functionaries
about the very legislation which governs their duties is
unacceptable.  It may be true that the problem lies with the officials
who
do not know what their responsibilities are and, regrettably, with legal
representatives who do not know who the responsible
functionaries are.
However, this ignorance is no justification for their failings.  It may
explain the cause of the problem,
but it constitutes neither a good excuse nor
a justification thereof and cannot serve to protect the state from being held
responsible.
[82]
In terms of section 172(1)(b) of the Constitution, a
court which has declared a statutory provision to be unconstitutional, and
therefore
invalid, may make any order that is just and equitable, including “an
order limiting the retrospective effect of the declaration
of invalidity” and
“an order suspending the declaration of invalidity for any period and on any
conditions, to allow the competent
authority to correct the defect.”
[83]
As stated earlier, the courts have referred to the
obligations of the state to pay its debts as a moral obligation
[60]
and one which should, as a
consequence of being elected to power, be exercised in the interests of
maintaining confidence in its
rule.  This reliance on the moral obligation
of the state to pay its debts is no longer acceptable, as it has proven to be
unproductive
and has revealed the state’s inability or refusal to abide by its
own moral standards.  Hence, we need legislative measures
that will
provide an effective way in which judgment orders may be satisfied, and
mechanisms that will inform the litigants in detail
on the procedures that they
will need to follow regarding payment of court orders against the state.
It has become necessary
for this Court to oversee the process of compliance
with court orders and to ensure ultimately that compliance is both lasting and
effective.
[84]
The legislature is mandated to ensure the impartiality
and efficiency of the courts and their accessibility via legislative
measures.
It is apparent from the facts and history of this case that the
legislature and the executive have not taken measures, legislative
or
otherwise, to ensure that the orders of a court are obeyed.  What is
required in this matter is for the state to take heed
of the order made by this
Court and change the manner in which it deals with the satisfaction of judgment
debts.  This is in
line with the constitutional duty placed on it.
[61]
[85]
It is indeed unfortunate that judicial officers are
placed in the invidious position of having to oversee state action.
However,
oversight is essential in the circumstances.  In the interests of
justice and in an effort to uphold the rights and principles
that are espoused
in our Constitution, there can be no other effective manner to ensure that the
state complies with the order.
[62]
[86]
Because of the 200-odd cases against the state for
payment of judgment debts, there is a need for finality in those cases.
An
effective manner of dealing with the problem at hand is to allow attachment
against the funds.  This would have a minimal impact
on the proper
functioning of the state as the judgment creditor would be executing against a
fund and not against assets that are
required for essential services.  The
state has not made lack of resources an issue and has recognised that the
problem is an
administrative one.  The administrative delays can therefore
be overcome if execution is allowed.  I do, however, recognise
the need
for proper accounting procedures and the need to respect the authority of other
arms of the state – even those organs that
do not always accord the courts the
same respect.  The practice in other countries is to issue a certificate,
which on presentation
to the relevant authorities will result in payment.
[87]
Bearing in mind the many instances of state officials’
inefficiency, the only effective way to ensure that all outstanding debts are
satisfied is to make an appropriate order.  I shall make that order.
[88]
Regard needs to be had to the state’s interest in
monitoring and controlling its accounting procedures and in being able to
account
for the losses, expenditures and liabilities that the state
incurs.  The respondents have referred more than once to the accounting
processes which this Court should bear in mind when making a decision and this
is a valid submission which needs to be considered
seriously.  The PFMA
and the Regulations contain numerous provisions relating to accounting
procedures and the manner in which
they are controlled and supervised.  These
processes are within the domain of the executive and should not be interfered
with
unless clear and compelling reasons exist for doing so.  In as much
as this Court has the power to craft any order it deems
fit in the
circumstances, it does have to ensure that the order is not too wide or
far-reaching.  Having looked at the PFMA
and the complex procedures in
place to account for state assets, as well as the other regulations in place to
manage state finances,
it is my view that the legislature should be allowed to
introduce mechanisms that would enable a judgment creditor to execute against
the funds.  The legislature is in the best position to make this decision
and also to integrate any policy changes that would
then have to be made.
The separation of powers doctrine needs to be respected and due deference
afforded to the other arms
of government, especially when the matter relates to
complex procedures beyond the expertise of this Court.
[63]
On the concept of deference, this Court in
Bato Star
further stated
that—
“[t]he need for Courts to treat
decision-makers with appropriate deference or respect flows not from judicial
courtesy or etiquette
but from the fundamental constitutional principle of the
separation of powers itself.”
[64]
[89]
This area of law has been problematic not only for South Africa, but for other jurisdictions that have struggled to reach a balance
between
state immunity from tort liability and government accountability to the state’s
citizens.  In a state that has pledged
itself to redeem the dignity of its
citizens, it should not be the state itself that tramples on the rights of its
citizens.
On the contrary, everyone should be working tirelessly to
protect and promote that dignity, it being accepted that we are dealing
with a
majority of previously disadvantaged persons.
Appeal of the first respondent
[90]
In its answering affidavit the first respondent sought
to appeal against the confirmation of the order of invalidity in terms of
section
172(2)(d) of the Constitution read with Rule 16 of the Constitutional
Court Rules.
[65]
The retort by the applicant in
this matter was sharply that such appeal should not be entertained by this
Court as it was out
of time and not in compliance with the requirements of Rule
16(5) of the Constitutional Court Rules.
[66]
This line was not pursued in argument at the hearing, correctly so in my view,
as it was liable to be shot down on making its
appearance.
Costs
[91]
I turn now to consider the question of costs.  The
issues raised in these proceedings are of considerable importance.  In
dealing with the question of costs, we need to take into account the way in
which the State Attorney’s office has conducted litigation
in the High Court
and in this Court.  This application was brought to this Court as a result
of the negligent disregard of an
existing court order.  The ineffective negligent
acts of state officials resulted in a comedy of errors which could easily have
been avoided.  The respondents, as organs of state, bear a special
obligation to ensure that the work of the judiciary is not
impeded.  In
the circumstances, it is appropriate for costs to be awarded against the
respondents.
Order
[92]
The following order is made:
(1)       The
order of constitutional invalidity made by the Pretoria High Court is confirmed
in the
following terms:
Section 3
of the
State Liability Act is
declared to be inconsistent
with the Constitution to the extent that it does not allow for execution or
attachment against the state
and that it does not provide for an express
procedure for the satisfaction of judgment debts.
(2)       The
declaration of invalidity is suspended for a period of 12 months to allow
Parliament to
pass legislation that provides for the effective enforcement of
court orders.
(3)
a)         The second respondent is
required to compile
and provide to this Court on affidavit a list of all
unsatisfied court orders against all national and provincial state departments,
indicating the parties, the case number and the amounts outstanding, by no
later than 31 July 2008.
(b)       Further directions may be
issued by the Chief Justice, as necessary.
4)
The second respondent is required to provide this Court on affidavit with a
plan of the
steps it will take to ensure speedy settlement of unsatisfied court
orders by no later than 31 July 2008.
5)
The respondents are ordered to pay the applicant’s costs, such costs to include
the costs
consequent upon the employment of two counsel.
Moseneke
DCJ, Ngcobo J, Sachs J, Skweyiya J, Van der Westhuizen J and Yacoob J all
concur in the judgment of Madala J.
NKABINDE J:
Introduction
[93]
I have had the privilege of reading the judgment of
Madala J.  After anxious consideration, I am unable to agree with much of
his
reasoning and parts of the finding.  I cannot accept that the impugned
portion of
section 3
of the
State Liability Act (the
Act)
[1]
is inconsistent
with the Constitution and therefore invalid.  Although only a portion of
section 3 is impugned, it is convenient
to set out the section in full.
It reads:
“
No execution, attachment or like
process shall be issued against the defendant or respondent in any such action
or proceedings or
against any property of the State
, but the amount, if
any, which may be required to satisfy any judgment or order given or made
against the nominal defendant or respondent
in any such action or proceedings
may be paid out of the National Revenue Fund or a Provincial Revenue Fund, as
the case may be.”
(Emphasis added.)
[94]
The declaration of constitutional invalidity by Davis
AJ in the Pretoria High Court
[2]
is a sequel to the non-compliance by
the first respondent or officials in his department with an order of that
Court, per Mabuse
AJ.  This case is about the non-compliance with that
order.  In my view, since the non-compliance can neither be justified
nor
authorised under section 3 of the Act, the unlawful conduct by the state officials
concerned cannot form a basis for attacking
the validity of the section.
[95]
The problem of non-compliance with court orders has
frequently confronted our courts in recent times and various solutions have
been
devised to ensure the satisfaction of judgment debts.  In some cases,
courts have opted for contempt proceedings to enforce
money judgments against
the state.
[3]
In other cases structural
interdicts have been granted.
[4]
The solutions in those cases
appear to have been effective in satisfying the judgment debts in question.
[96]
Following the judgment of the Supreme Court of Appeal
in
Jayiya v Member of the Executive Council for Welfare, Eastern Cape and
Another
,
[5]
confusion followed as to whether
contempt of court proceedings could be used to enforce money judgments against
the state.
In that case, the Court overruled the decision of the High
Court which had upheld the proposition that a money judgment could be
enforced
by way of committal proceedings.
[6]
However, the
Supreme Court of Appeal later clarified the position in
MEC, Department of
Welfare, Eastern Cape v Kate
.
[7]
Nugent JA,
writing for the entire Court, said:
“It goes without saying that a public
functionary who fails to fulfil an obligation that is imposed upon him or her
by law is open
to proceedings for a
mandamus
compelling him or her to do
so.  That remedy lies against the functionary upon whom the statute
imposes the obligation, and
not against the provincial government.  If
Jayiya
has been construed as meaning that the remedy lies against the political head
of the government department, as suggested by the Court
below, then that
construction is clearly not correct.  The remarks that were made in
Jayiya
related to claims that lie against the State, for which the political head of
the relevant department may, for convenience, be cited
nominally in terms of
s
2
of the
State Liability Act 20 of 1957
, though it is well established that the
government might be cited instead.  Moreover, there ought to be no doubt
that a public
official who is ordered by a court to do or to refrain from doing
a particular act, and fails to do so, is liable to be committed
for contempt,
in accordance with ordinary principles, and there is nothing in
Jayiya
that suggests the contrary.”
[8]
(Footnotes omitted.)
[97]
According to the above dictum, a judgment creditor is
free to seek a
mandamus
against the public official who fails to comply
with a court order
.
What the judgment creditor is precluded from
doing is seeking committal of the state official concerned for failure to
satisfy
a judgment debt without first obtaining a
mandamus
because, in
the view of the Supreme Court of Appeal, that would constitute the creation of
a crime that does not exist under the
common law.
[9]
It must be stressed however that the remarks by the Supreme Court of Appeal
must not be construed as meaning that a
mandamus
cannot be sought
against political heads of state departments.  The remarks were made in
the context of the case before that
Court.  It follows that the remedy of
mandamus
is available against any public official who is obliged to do something by a
statute but fails to act promptly or diligently.
Parties
[98]
The applicant, Mr Nyathi, died on 4 July 2007.
His wife, Mrs Lemyiwe Angelina Nyathi, successfully applied in terms of
Rule
7(2)
[10]
of the Rules of this Court, to be
appointed to substitute him.  The first respondent, sued in his nominal
capacity, is the Member
of the Executive Council for Health in the Gauteng
Province (MEC).  The second respondent, also cited in her nominal
capacity,
is the Minister for Justice and Constitutional Development
(Minister).  She was joined
[11]
during the
proceedings in the High Court in compliance with Rule 10A of the Uniform Rules
of Court (Uniform Rules).
[12]
The amicus curiae, the Centre
for Constitutional Rights, was admitted to advance submissions and present oral
evidence.
Factual background
[99]
The circumstances that gave rise to the claim by the
applicant have been set out comprehensively in the main judgment.  I will
not deal with them in great detail save for the facts upon which I base my
findings and conclusion.
[100]
The applicant sued the MEC for damages in the sum of R1 496 000
suffered as a result of the negligence of the professional, medical
and nursing
staff at Pretoria Academic Hospital and Kalafong Hospital.  The MEC
conceded the merits of the applicant’s claim.
The matter was set down for
the determination of quantum.  It was finally settled by the parties on 23
May 2007.
[13]
[101]
While waiting for the hearing on the determination of quantum, the applicant
addressed a letter to the State Attorney requesting an
interim payment in the
amount of R317 700 so that he could, among other things, undergo medical
treatment due to the deterioration
of his medical condition.  He informed
the State Attorney that he would lodge an application for an interim payment if
no payment
were received within 14 days of the letter.  The State Attorney
advised the applicant that the request for payment had been
sent to the MEC
[14]
and that it was not necessary to
obtain an order for interim payment in terms of Rule 34A of the Uniform Rules.
[15]
The State Attorney informed
the applicant that the MEC offered to pay an amount of R500 000 in full and
final settlement of
the applicant’s claim but the applicant rejected the offer.
[102]
On 30 August 2006 the State Attorney addressed another letter to the
applicant, indicating that the MEC did not dispute that it might
in the future
be liable for payment of some of the costs but asked that the interim payment
be suspended pending a determination
on the issue of costs.  On 22
November 2006 the applicant applied for and was granted an order by Mabuse AJ
for payment of an
interim amount of R317 700.  When no payment was
forthcoming, another letter together with the court order was sent by
registered
mail to the State Attorney.  In the letter the applicant
indicated that he would apply for an order to compel the MEC to comply
with the
order by Mabuse AJ if no payment were received.
In the High Court
[103]
Consistent with the procedure permitting an application for a
mandamus
as contemplated in
Kate
,
[16]
on 23 March 2007 the
applicant launched an urgent application in the High Court against the
MEC.  The Minister was also cited
because the relief sought included an
order declaring section 3 of the Act to be inconsistent with the Constitution
and thus invalid.
Part of the relief sought was formulated thus:
“[The MEC] is ordered to comply with the
court order dated 22 November 2006 within 3 days of this order, failing which
the Applicant
may approach this court on the same documents, amplified where
necessary, for an order declaring the [MEC] to be in contempt of court
and an
order committing the [MEC] to gaol for a period of 90 days.”
[104]
The basis upon which an order for constitutional invalidity was
sought in the High Court needs to be clearly set out.  Having
pointed out
that the court order had been ignored for three months, the deponent to the
founding affidavit formulated the cause of
action for the declaration of
constitutional invalidity in the following terms:
“34.      By virtue of the provision of
section 3 of [the Act] no execution, attachment or like process can
be issued
against the [MEC] to satisfy the judgment debt.
35.        Applicant finds
himself in a stalemate position in that there is nothing he can lawfully
do to
enforce the judgment in his favour.  Because [the MEC] blatantly ignores
the court order, the Applicant gradually sinks
further and further in the
quagmire and is powerless to do anything about it.
36.        I respectfully submit
that the provisions of section 3 of [the Act] is unconstitutional
in that it
infringes the right of the Applicant to human dignity, his right to life and
his right to access to court.  The provisions
of Section 3 furthermore
have the result that there is no equality before the law in that there is no
mechanism available to the
Applicant to enforce his right to payment of the
judgment debt against the State.”
[105]
While it is true that section 3 prohibits execution or
attachment against a nominal respondent, it is incorrect for the applicant
to
say that there was nothing he could lawfully do to enforce the judgment
debt.  It is self-evident from his papers that he
could apply for and did
in fact ask for a
mandamus.
Furthermore, the assertion that the
MEC “blatantly ignore[d] the court order” is incorrect.  In his papers the
applicant
did not show that the order and papers were served on the MEC despite
the mandatory relief sought against him.  Instead he stated
that the order
was served on the State Attorney.  It has since transpired that the MEC
was not aware of the order in question.
[106]
It appears that at the hearing of the application, the State
Attorney handed up a note indicating that the court order had been
forwarded to
the accounts department to process payment which would reflect in the
applicant’s banking account within 14 days.
[17]
The State Attorney applied for a postponement of the application.  The
Court, imputing knowledge of the application to
the MEC and the Minister on the
basis of the handwritten note from the State Attorney and the request for a
postponement by the latter,
refused to postpone the case.  It then
proceeded with the matter on an unopposed basis despite the fact that the
issue, as apparent
from a reading of the judgment, was a profoundly contentious
one.
[18]
[107]
The High Court, having considered the constitutional validity of the
impugned provision on the applicant’s version, granted an order
by default
declaring section 3 to be inconsistent with the Constitution.
[19]
Relying on
Jayiya
,
[20]
the Court said that the appropriate
remedy for payment of a money judgment would be to levy an execution and not proceed
with contempt
proceedings.
[21]
The Court seemingly implied
that a mandatory order would be inappropriate.  It relied also on
N and
Others v The Government of the Republic of South Africa (No 3)
,
[22]
York Timbers Ltd v Minister of
Water Affairs and Forestry and Another,
[23]
Kate
v MEC for the Department of Welfare, Eastern Cape
[24]
and
Matiso
and Others v Minister of Defence
[25]
for the view that the
money judgment in the present case could not be enforced against the
state.  In this view the High Court
found support in the Crown Liabilities
Act
[26]
which, the Court found, “equally
prohibited the enforcement of orders of court.”
[27]
The High Court said
[28]
that the ratio for the prohibition
was stated in
Schierhout v Minister of Justice.
[29]
In that case Innes CJ said:
“T
he policy of the Act . . . .was to
allow the jurisdiction of the Courts to be exercised against the Crown, not
only in respect of
claims sounding in money, but also in cases where relief was
sought by way of declaration or mandatory order.  But the Legislature
was
content to rely upon the moral obligation which the decree of a Court was bound
to exert.  No process of any kind was to
be exercised as against Crown
representatives or Crown property.”
[30]
[108]
I am unable to understand how the object of the Act fortifies the
view that judgment debts cannot be enforced against the state.
The Act
shows instead that Parliament intended the state to be bound by courts’
decisions although it did not provide for an enforcement
agency in the event of
non-compliance by the state.  In
S v Mamabolo (E TV and Others
Intervening)
,
[31]
this Court, per Kriegler J, said:
“In our constitutional order the Judiciary
is an independent pillar of State, constitutionally mandated to exercise the
judicial authority
of the State fearlessly and impartially.  Under the
doctrine of separation of powers it stands on an equal footing with the
executive and the legislative pillars of State; but in terms of political,
financial or military power it cannot hope to compete.
It is in these
terms by far the weakest of the three pillars; yet its manifest independence
and authority are essential.  Having
no constituency, no purse and no
sword, the Judiciary must rely on moral authority.  Without such authority
it cannot perform
its vital function as the interpreter of the Constitution,
the arbiter in disputes between organs of State and, ultimately, as the
watchdog over the Constitution and its Bill of Rights—even against the State.”
[32]
It is in the above context that the
remarks in
Schierhout
, referred to by the High Court in this matter,
must be read and understood.
[109]
Relying on its incorrect construction of
Jayiya
and the MEC’s
failure to comply with the court order, the High Court concluded that the applicant’s
right of access to courts as
enshrined in section 34 of the Constitution
[33]
had effectively been infringed.
[34]
The Court held that section 3
of the Act places the state and its officials above the law and beyond the very
orders which
should bind it or hold it accountable as it is inconsistent with
sections 165(5)
[35]
and 195(1)(f)
[36]
of
the Constitution.
[110]
A prohibition in section 3 against execution or attachment of state
property or personal property of a nominal respondent or defendant
cannot, in
my view, be construed to mean that the state or public officials are above the
law or beyond the reach of court orders.
As mentioned above, the High
Court’s reasoning is based on an incorrect premise that judgment cannot be
enforced against the state.
Moreover, the Court’s reliance on sections
165(5) and 195(1)(f) for the finding that section 3 is inconsistent with the
Constitution
fell outside the pleaded case.
[37]
[111]
Regarding the prayer for an order to compel the MEC to comply with
the order dated 22 November 2006 within three days of the order
to be granted
by the High Court, Davis AJ remarked:
“After some debate, it was indicated to me
that the Applicant would not be proceeding with prayer 3 of his Notice of
Motion as quoted
in paragraph 4.3 supra.  Whether a finding for contempt
is precluded or not,
a committal to gaol of any official is precluded
and
in any event, both could only properly be considered after confirmation of the
finding of unconstitutionality.  Even in the
event of such confirmation
the proper remedy would be the issuing of a writ of execution and the
attachment and sale of assets (should
the State at that stage still not have
complied with the order).  Similarly an order for payment within 3 days is
superfluous:
an order for payment has already been made by this court and any
time period for compliance therewith, has already expired.”
[38]
(Emphasis added.)
In this Court
[112]
When this matter was called for the first time in this Court the
payment of the interim amount had, regrettably, not yet been made.
The
matter was postponed and the Court issued further directions in the following
terms:
“The respondents shall file their answering
affidavits on or before Friday 22 June 2007.  The first respondent is
called upon
to set out, in the affidavits filed on his behalf, the reasons for
his failure to comply with the order of court made by Mabuse AJ
on 24 November
2007 as well as identify by name those officials who were responsible for the
failure.  Once those affidavits
have been filed, the Chief Justice may
issue further directions.
. . . .
The State Attorney, Pretoria, Ms Mosidi, is
directed to file an affidavit fully explaining the reason for the failure by
her staff
to take instructions adequately from the respondents in this matter
as well as the matter in which her staff has generally conducted
the litigation
on behalf of the respondents in this matter.  She is also called upon to
set out what steps she is taking to
prevent the recurrence of unprofessional
conduct in future.  Ms Mosidi is requested to be present at the hearing of
this matter
on 30 August 2007.”
The matter was finally heard on 30
August 2007.
[113]
It was contended on behalf of the applicant that the impugned
provision infringes a person’s right of access to courts under section
34, is
inconsistent with section 165(5) and frustrates the constitutional injunction
under section 195(1).  It was contended
that there is absolutely nothing a
litigant can do when there is no compliance with court orders by the state.
[114]
The MEC and the Minister opposed the confirmation of constitutional
invalidity on the basis that the impugned section does not constitute
a
violation of any of the rights in the Constitution because the section does not
prohibit the payment by the state.  They argued
that the section expressly
authorises payment and that section 3 should be construed in a manner
consistent with the relevant provisions
of the Constitution.  It was
argued further that the provision is a barrier against the disruption of public
services.
[115]
The Minister contended that section 3 must be read with other
legislation, in particular, the Public Finance Management Act 1 of 1999
(PFMA)
read with the Treasury Regulations made under the PFMA.
[39]
Reference was made to the legal mechanisms available to a money judgment
creditor in the form of the granting of a mandatory
order against the
responsible official.  The respondents argued that neither section 3, nor
any part of it, is inconsistent
with the Constitution, alternatively, that if
it were so, the limitation is justifiable in terms of section 36 of the
Constitution.
[116]
The amicus made helpful written and oral submissions for which I am
grateful.  It contended that section 3 is not inconsistent
with the
Constitution, and argued that the granting of a mandatory order was a “quicker,
cheaper and a more back-straightening method”
of ensuring payment of a money
judgment instead of the expensive and cumbersome process of attachment.
The amicus urged this
Court to follow the approach adopted by the Bisho High
Court in
Magidimisi
[40]
so as to force recalcitrant state
officials to be accountable.
Constitutional validity of section
3
[117]
The fundamental issue is whether the legislative bar in section 3 is
inconsistent with the Constitution.  The applicant’s attack
is confined to
the first part of that section which prohibits execution or attachment of state
property or property of the nominal
respondent or defendant.  It is not
clear to me why the applicant wants execution to be levied against the property
of the nominal
respondent or defendant for satisfaction of a judgment debt
against the state.  As far as I can ascertain, our law does not
permit a
nominal respondent or defendant, for example the MEC, to be held personally
liable for a state debt.  It goes without
saying that section 3 does not
apply against his personal property.  It follows that the constitutional
challenge, insofar as
it was directed at the part of section 3 that restricts
execution or attachment on the property of the nominal respondent or defendant,
was misconceived.
[118]
In determining whether the section will pass constitutional muster,
it is important to consider the manifest underlying purpose of
the Act.
The law regarding state liability developed from principles such as sovereign
immunity to a system that recognises
that the state can be held liable in legal
actions and that it is bound to comply with court orders.  The national
interest
inherent in the provision was recognised even before the advent of the
present constitutional era.
[119]
The correct approach to constitutional adjudication was delineated by
Chaskalson CJ in
Van Rooyen and Others v The State and Others (General
Council for the Bar of South Africa Intervening)
:
[41]
“[L]egislation must be construed
consistently with the Constitution and thus, where possible, interpreted so as
to exclude a construction
that would be inconsistent with judicial
independence.  If held to be unconstitutional, the appropriate remedy
ought, if possible,
to be in the form of a notional or actual severance, or
reading in, so as to bring the law within acceptable constitutional
standards.
Only if this is not possible, must a declaration of complete
invalidity of the section or subsection be made.”
[42]
(Footnotes omitted.)
[120]
In
Coetzee v Government of the Republic of South Africa
[43]
this Court, per Kriegler J, referred
to the approach laid down by this Court:
“[o]rdinarily, one adopts a two-stage
approach for determining the constitutionality of alleged violations of rights
in chap 3 of
the Constitution.  The first stage is an enquiry whether the
disputed legislation or other governmental action limits rights
in chap 3 of
the Constitution.  If so, the second stage calls for a decision whether
the limitation can be justified in terms
of . . . the Constitution.”
[44]
[121]
The following remarks by this Court, per Ackermann J in
Shaik v
Minister of Justice and Constitutional Development
,
[45]
are
apposite in this case:
“It is constitutionally a serious matter
for any Court to declare a statutory enactment of Parliament – or for that
matter of any
legislature – invalid, because it constitutes a serious invasion,
albeit a constitutionally sanctioned one, by one arm of the State
into the
sphere of another.  Moreover, an order by this Court that a statutory
provision is constitutionally invalid does not
operate between litigating
parties only, but is generally binding on all persons and organs of State.”
[46]
In that case the Court cited with
approval the remarks in
Ferreira v Levin NO and Others; Vryenhoek and Others
v Powell NO and Others
[47]
regarding the principles of
objective constitutional invalidity:
“The Constitutional Court, or any other
competent Court for that matter, ought not to restrict its enquiry to the
position of one
of the parties to a dispute in order to determine the validity
of a law.  The consequence of such a (subjective) approach would
be to
recognise the validity of a statute in respect of one litigant, only to deny it
to another.  Besides resulting in a denial
of equal protection of the law,
considerations of legal certainty, being a central consideration in a
constitutional state, militate
against the adoption of the subjective
approach.”
[48]
The Court correctly stated that the
principle is equally applicable under the 1996 Constitution.
[49]
[122]
It was contended that the impugned part of the section is
unconstitutional because it places the state and its officials beyond orders
which should bind them or hold them accountable.  When addressing the
fundamental question in this judgment, I deal with whether
the impugned section
(a) frustrates the constitutional injunctions under sections 165(5) and
195(1)(f)
of the Constitution; (b)
violates the right of access to courts; (c) violates the right to equality
(and, if it does, whether the
limitation is justifiable in an open and
democratic society); and (d) whether there are any available legal remedies.
Constitutional injunctions under
sections 165(5) and 195(1)(f)
[123]
The applicant argued that section 3 frustrates constitutional
injunctions including the constitutional principles of judicial authority
and
accountability in terms of sections 165(5) and 195(1)(f), respectively.
[50]
The argument, as I understand
it, is premised on the fact that the relevant state officials failed to comply
with and/or blatantly
ignored the order.  As I have indicated earlier, the
unlawful conduct of the state officials concerned cannot, in my view, form
the basis
for attacking the validity of section 3.
[124]
The endemic non-compliance with court orders by state officials,
more particularly in the Eastern Cape Province, and elsewhere as
illustrated by
court decisions, is at odds with the values and injunctions in the
Constitution.  Such conduct should not be
tolerated.  In the present
case, the incompetence and negligence of state officials regrettably resulted
in substantial prejudice
to the applicant.  That should not and ought not
to have occurred.
[125]
There is no question that the MEC was obliged, under section 3, read
with sections 1 and 2 of the Act and the injunctions in the Constitution,
to
comply with the court order in question.
[51]
In the affidavits filed pursuant to this Court’s directions, the MEC stated
that he was unaware of the case.  He made
the point that had he been made
aware of the order he would have ensured that it was promptly complied with.
The MEC stated
that he only became aware of the details of the matter after
receiving a memorandum dated 4 May 2007 from Messrs S Sithole and TE
Monyemangene, the officials of his department.  This evidence remained
unchallenged.  Needless to say, the MEC’s explanation
does not detract
from the objectionable conduct on the part of the state officials concerned.
[126]
The
memorandum and annexures thereto reveal that the following had occurred: (a) a memorandum
dated 19 April 2007 was sent to the
Head of Department, Ms SN Ngcobo,
requesting that the MEC authorise payment of the interim amount; (b) a
memorandum dated 20 April
2007 was sent from Mr Sithole to a senior clerk in
the Medico-Legal Services department requesting that payment of the interim
amount
be effected (seemingly, the memorandum was accompanied by a payment
authorisation); (c) a letter from Mr Sithole dated 20 April 2007
was sent to
the State Attorney advising that the interim payment had been made; and (d) a
memorandum from the CEO: Medico-Legal Services
dated 20 April 2007 was sent to
the CEO Pretoria Academic Hospital instructing that payment of the interim
amount be effected in
terms of circular No. 17 of 2003.
[52]
The MEC explained that he had convened a meeting to discuss
the matter and thereafter instructed the head of the department to commission
a
forensic investigation into the case of the applicant.  In her affidavit
the head of the State Attorney, Ms Mosidi explained
the challenges confronting
her office.  She stated that Mr Mapheto
[53]
had
not sent the relevant documents to the MEC.  It is apparent from the
affidavit, that a forensic investigation was conducted
on the behaviour of Mr
Mapheto in regard to the manner in which he had handled the matter.  The
affidavit states also, that
the report recommended that he be reported to the
Law Society.  Ms Mosidi stated that her office had conducted the litigation
on behalf of the MEC to the best of its ability but that the problems arose as
a result of the delay in processing the payment of
an interim amount by the
Department of Health.
[127]
It is evident from the explanations advanced by the MEC and the head
of the State Attorney that the genesis of the problem is not
inherent in
section 3.  In my view, section 3 does not offend the constitutional
principle that orders and decisions of courts
bind all persons including organs
of state nor does it offend the constitutional obligation of accountability on
the part of public
administration.
[128]
The special nature of government, its legislative and executive
processes and other considerations relevant to the way government
generally
functions, including its obligation to deal with limited state resources in the
public interest, are important considerations
to be taken into account when
determining the validity of the impugned section.
[129]
The ineptitude, inefficiency and the tardy manner in which the
matter was handled both by the State Attorney and the officials in
the
department is undoubtedly inimical to the principle of accountability owed by
public officials to the people they serve.
But
non constat
that
the unlawful conduct on the part of the state officials can be said to have had
the effect that the impugned provision renders
the state and its officials
immune from complying with their constitutional injunction.  In the view I
take of the matter, the
constitutional validity of section 3 cannot be tested
on the basis that state officials, on occasion, fail to act competently or
properly.  The proper resolution of the administrative inertia seems to
lie in the public administration getting its house in
order and that cannot, in
my view, be achieved by the striking down of section 3.
[130]
In my view, by its very wording, the section, properly construed and
applied, neither prohibits the payment of a money judgment by
organs of state
nor detracts from the core value of compliance with court orders.
Furthermore, it does not affect the capacity
of those upon whom duties are
imposed by sections 165(5) or 195(1)(f) and the Constitution to implement court
orders.  A reading
of the impugned provision which suggests the contrary
would, in my view, be unduly strained.
[131]
This section indicates that absent execution payment of any amount
which may be required to satisfy any judgment debt given or made
against the
nominal defendant or respondent may be paid out of the National or Provincial
Revenue Funds.  Put differently, it
evidences not only that execution
process against the state is not available, but also the intention of the
legislature that the
court order must be complied with by the relevant nominal
defendant or respondent, as the case may be, by paying the judgment debt
from
the relevant fund.  The section may also be reasonably interpreted as
imposing a duty on the relevant nominal defendant
or respondent to act in terms
of the Act.  It follows that the nominal defendant or respondent who acts
in disregard of the
law acts outside his or her authority and exposes himself
or herself to personal liability.
[132]
I proceed to consider whether the prohibition against execution or
attachment of state assets limits the applicant’s right of access
to courts.
Access to courts
[133]
The High Court found that the MEC’s failure has effectively
prevented the applicant’s proper preparation for the quantum portion of
his
trial.
[54]
In doing so, it is argued, the
MEC has effectively encroached on or prejudiced the applicant’s right of access
to courts in
terms of section 34 of the Constitution.  That section
provides that “[e]veryone has the right to have any dispute that can
be
resolved by the application of law decided in a fair public hearing before a
court or, where appropriate, another independent
and impartial tribunal or
forum.”
[134]
In this Court the applicant maintained that failure to comply with
the court order in question encroached upon his right of access
to courts as
enshrined in the Constitution.  It seems plain to me that the prohibition
in section 3 does not infringe this right.
Execution is a process which
comes into play only after a court has given its decision on a case.  It
is but a process incidental
thereto.  This Court, per Mokgoro J, in
Chief
Lesapo v North West Agricultural Bank and Anothe
r,
[55]
describes execution in the following terms:
“An important purpose of s 34 is to guarantee
the protection of the judicial process to persons who have disputes that can be
resolved
by law.  Execution is a means of enforcing a judgment or order of
court and is incidental to the judicial process.  It
is regulated by
statute and the Rules of Court and is subject to the supervision of the court
which has an inherent jurisdiction
to stay the execution if the interests of
justice so require.”
[56]
(Footnotes omitted.)
[135]
In
President of the RSA and Another v
Modderklip Boerdery
(Pty) Ltd
[57]
this Court, per Langa ACJ, echoed
the views expressed in
Chief Lesapo
about the foundational importance of
the right of access to courts.  The Court stressed that:
“[t]he mechanisms for the resolution of
disputes include the legislative framework, as well as mechanisms and
institutions such as
the courts and an infrastructure created to facilitate the
execution of court orders.  In this case, the legislative framework
includes
the provisions of the Act which are directed at assisting both the landowner
and the unlawful occupier.”
[58]
The Court continued:
“The obligation on the State goes further than
the mere provision of the mechanisms and institutions referred to above.
It is
also obliged to take reasonable steps, where possible, to ensure that
large-scale disruptions in the social fabric do not occur in
the wake of the
execution of court orders, thus undermining the rule of law.  The precise
nature of the State’s obligation in
any particular case and in respect of any
particular right will depend on what is reasonable, regard being had to the
nature of the
right or interest that is at risk, as well as on the
circumstances of each case.”
[59]
[136]
In my view, section 3 of the Act and section 38
[60]
of
the PFMA when read together with the Treasury Regulations made in terms of the
PFMA,
[61]
impose general responsibilities on
the nominal respondents and the accounting officers, respectively.  These
statutory enactments
constitute the legislative framework for the benefit of
both money judgment creditors and the state.
[137]
The fact that the applicant approached the High Court illustrates
that section 3 does not violate his right of access to courts.  Indeed,
the applicant was frustrated and inconvenienced by the delays in effecting
payment by the state officials but that cannot be said
to flow from the
application of section 3.  As I indicated earlier in this judgment, there
is no evidence that the MEC was served
with the papers and/or was aware of the
claim and its details before 2 April and 4 May 2007, respectively, and that
prior to those
dates he refused to satisfy the judgment debt.  The
evidence shows that immediate steps were taken after 4 May 2007 to set in
motion departmental procedures so that payment could be made in accordance with
the relevant departmental treasury instructions.
As evident from the
affidavit by the MEC, the applicant’s problem might well have been addressed
had the MEC been notified of the
judgment prior to 2 April 2007.  In the
circumstances of this case, it cannot be said that the impugned provision in
itself
violates the right of access to courts.
[138]
I now turn to the alleged infringement of the right to equality.
Equality
[139]
It was contended on behalf of the applicant that section 3 infringes
his right to equality enshrined in section 9(1) of the Constitution
because it
unjustifiably differentiates between a judgment creditor who obtains a court
order against a private citizen and one who
obtains an order against the state.
[62]
The disparate circumstances
between money judgment creditors against the state and those that are not, were
succinctly set
out by the High Court:
“Ordinarily a judgment creditor will have
sufficient means to his disposal to enforce compliance with an order of court
granted in
his favour.  At common law, a distinction is made between
orders
ad factum praestandum
and orders
ad pecuniam solvendam
.
In the first instance, such a judgment creditor can apply to court for findings
and orders of contempt of court by and committal
of the defaulting
debtor.  In the latter instance, the issue of a writ of execution followed
by an attachment of assets and
a sale thereof is the proper and customary way
by which such a judgment debtor can recover that which is due to him in terms
of the
court order.  The aforesaid situation is not the position when the
Defendant is the State”.
[63]
[140]
It is beyond doubt that money judgment creditors against the state
are, due to the prohibition in section 3 of the Act, treated differently
from
similarly placed money judgment creditors against private citizens or corporate
entities.  The latter are usually entitled
to the remedy of execution
against their debtors’ assets, whereas the former are denied that remedy.
The question is whether
the differentiation, by itself, constitutes an
infringement of the right to equality.  The standard for testing the validity
of differentiation in terms of section 9(1) is that of rationality.  In
Prinsloo
v Van der Linde and Another
,
[64]
Ackermann,
O’Regan and Sachs JJ dealt with a challenge under section 8(1) of the interim
Constitution (now section 9(1) of the Constitution).
They said:
“In regard to mere differentiation the
constitutional state is expected to act in a rational manner.  It should
not regulate
in an arbitrary manner or manifest ‘naked preferences’ that serve
no legitimate governmental purpose, for that would be inconsistent
with the
rule of law and the fundamental premises of the constitutional state.  The
purpose of this aspect of equality is, therefore,
to ensure that the state is
bound to function in a rational manner.  This has been said to promote the
need for governmental
action to relate to a defensible vision of the public
good, as well as to enhance the coherence and integrity of legislation.
Accordingly, before it can be said that mere differentiation infringes section
8 it must be established that there is no rational
relationship between the
differentiation in question and the governmental purpose which is proffered to
validate it.  In the
absence of such rational relationship the
differentiation would infringe s 8.”
[65]
(Footnotes
omitted.)
The question, therefore, is whether
there is a rational relationship between the differentiation in question and
the governmental
purpose which is proffered to validate it.
[141]
It cannot be disputed that government functions differently from
private individuals and legal entities and that it has no resources
which are
truly its own.  As I have indicated, the special nature of the state, its
legislative and executive processes and
other relevant considerations as to how
government functions, including its obligation to deal with limited state
resources in the
public interest, must be taken into account.  As
correctly pointed out by counsel for the respondents, there are mechanisms
which apply to the administration of state resources, particularly as to how
state funds are to be expended in order to ensure proper
accountability.
[142]
Section 3 is designed to prevent disruptions in the social fabric
which may take place in the wake of attachments and executions against
state
assets.  The High Court did not apply the test laid down in
Prinsloo
before making the finding of constitutional invalidity.  In my view, the
prohibition serves a legitimate governmental purpose.
The disruption that
would be caused by the attachment or execution of state property, especially in
essential services such as health
and state security, is too frightening to
contemplate.  For example, the realisation of the constitutional right of
access to
healthcare of members of the public would be severely compromised if
public assets were to be attached.  While it cannot be
disputed that the
prohibition on executing against state assets in favour of a judgment creditor
places the latter at a comparative
disadvantage, generally allowing attachment
and execution of public assets may have disastrous consequences.  It must
be emphasised,
furthermore, that the impugned section does make provision for
the payment of any amount required to satisfy any judgment or order
by the
nominal respondent or defendant out of the National or Provincial Revenue Fund,
as the case may be.
[143]
The prohibition of execution of state assets and how judgment debts
against the state are to be paid are important governmental objectives.
Indeed, section 195(5) requires the state to act accountably in what it
does.  As this Court stated in
Modderklip Boerdery,
the state’s
obligations go further than the mere provision of institutions for the
resolution of disputes.  It is obliged, the
Court correctly stated, “to
take reasonable steps, where possible, to ensure that large-scale disruption in
the social fabric does
not occur in the wake of the execution of court orders,
thus undermining the rule of law.”
[66]
Notably, the
High Court was alive to the fact that attachment and execution might disrupt
the running of government affairs.
The Court remarked:
[67]
“Any levying of execution or attachment of assets
of the State as a result of the striking down of the prohibition contained in
Section 3
of the
State Liability Act, could
only come about as a result of the
State’s failure to comply with a court order and such good governance
imperatives as in any event
constitutionally enshrined.
Any
disruption, or rather, the prevention thereof, will therefore be in the hands
of the State itself and that of its officials
. . . .”
[68]
(Emphasis added.)
For these reasons, I conclude that
the differentiation contained in
section 3
is rationally related to the
important governmental purpose of preventing disruption of public
services.  It follows, therefore,
that section 9(1) of the Constitution
was not infringed.
[144]
The next question for consideration relates to remedies available to
a litigant in the position of the applicant.
Available remedies
[145]
On behalf of the applicant it was contended that because the MEC
“blatantly” ignored the court order, the applicant found himself
in a stalemate
position in that there was nothing he could lawfully do to enforce the money
judgment in his favour.  It was
argued that the lack of mechanisms to
enforce court orders releases state officials from obeying court orders.
The High Court,
as I indicated earlier, mistakenly relied on
Jayiya.
[69]
Although the applicant
contended that there was nothing he could lawfully do to cause the state to pay
the judgment debt, he did not
deny that a legal remedy in the nature of a
mandamus
was available
.
I have mentioned earlier that he, in fact,
sought a
mandamus
in the High Court but abandoned that relief during the
hearing.  He contended simply, before this Court, that an invitation
to a
judgment creditor to seek a
mandamus
defies the harsh realities of
litigation with its inherent concomitant risks and extra costs occasioned by a
second set of proceedings.
[146]
No doubt, there may well be cases in which applying for a
mandamus
might be impractical
[70]
and/or increase legal costs.
[71]
However that, in my view, will
not provide a justification for striking down section 3.  The possibility
of a
mandamus
as a way to enforce the order is a consideration to be
borne in mind in determining whether there was nothing lawful the applicant
could do to obtain payment as was submitted on his behalf.  Whether a
mandamus
could have coerced the MEC (or any other relevant state official such as the
Head of Department) to pay is, for the purpose of this
case, a matter I refrain
from determining lest one speculates.  Without saying anything about the
wisdom, expediency or efficacy
of the execution scheme, the fact remains that a
mandatory order is one of the remedies available to compel compliance with a
court
order.  As I said earlier, the applicant had specifically asked the
High Court to order a
mandamus
.
The relief was jettisoned
during argument before that Court.
[72]
I reiterate
that the applicant cannot maintain that there was nothing he could lawfully do
to enforce the judgment debt, for
he did not exhaust all lawful means available
to him for the execution of the judgment debt in question.
[147]
It is evident from the judgment of the High Court that the applicant
sought a declaration of constitutional invalidity to “goad the
[MEC] into
action”.
[73]
Although a strong message of
disapproval regarding the unlawful conduct of state officials must be conveyed,
courts must heed
the warning by this Court that declaring a statutory enactment
of Parliament invalid is a serious matter which generally binds all
persons and
organs of state.
[74]
Legislation may not be struck
down merely to enforce payment which may be obtained through available legal
remedies.
I have doubt that a declaration of invalidity would be an
effective remedy in the circumstances of the case.  It is doubtful
also
whether the declaration will be a panacea for the problems which are clearly
inherent in administrative bungling.  In my
view, a
mandamus
is one
of the legal remedies that may constitute effective alternatives to compulsory
execution by way of attachment against public
assets.
[148]
It cannot, in the circumstances, be said that the High Court had,
borrowing the words used by the Supreme Court of Appeal in
Kate
,
“exhausted its lexicon of epithets in its attempts to drive [the] point home so
that the impasse [could] be ended.”
[75]
Regarding the
prayer for a
mandamus
the High Court said:
“[A]n order for payment within 3 days is
superfluous: an order for payment has already been made by this court and any
time period
for compliance therewith, has already expired.”
[76]
The Court had, with respect,
seemingly lost sight of the fact that a common law remedy of a
mandamus
would have been a more plausible recourse because it forces a public authority
to carry out a legal duty or obligation and responds
to administrative
inertia.  In my view,
a
mandamus
or a structural interdict,
somewhat similar to the one granted by Froneman J in
Magidimisi
,
[77]
would have been appropriate in the
circumstances of this case.  Such an order would have been consonant with
the remarks by
this Court in
Fose v Minister of Safety and Security
[78]
that:
“Appropriate relief will in essence be
relief that is required to protect and enforce the Constitution.
Depending on the circumstances
of each particular case, the relief may be a
declaration of rights, an interdict, a mandamus or such other relief as may be
required
to ensure that the rights enshrined in the Constitution are protected
and enforced.  If it is necessary to do so, the courts
may even have to
fashion new remedies to secure the protection and enforcement of all these
important rights.”
[79]
The Court went further and said:
“In our context an appropriate remedy must
mean an effective remedy, for without effective remedies for breach, the values
underlying
and the rights entrenched in the Constitution cannot properly be
upheld or enhanced.  Particularly in a country where so few
have the means
to enforce their rights through the courts, it is essential that on those
occasions when the legal process does establish
that an infringement of an
entrenched right has occurred, it be effectively vindicated.  The courts
have a particular responsibility
in this regard and are obliged to ‘forge new
tools’ and shape innovative remedies, if needs be, to achieve this goal.”
[80]
[149]
It is well-established that where it is possible to decide a case,
civil or criminal, without reaching a constitutional issue, that
route should
be followed.
[81]
The principle was affirmed in
Zantsi
v Council of State, Ciskei, and Others
[82]
where
Chaskalson P said:
“It is only where it is necessary for the
purpose of disposing of the appeal, or where it is in the interest of justice
to do so,
that the constitutional issue should be dealt with first by this
Court. It will only be necessary
for this to be done where the appeal
cannot be disposed of without the constitutional issue being decided; and it
will only be in
the interest of justice
for a constitutional issue to be
decided first, where there are compelling reasons that this should be done. . .
In view of the far-reaching
implications attaching to constitutional
decisions, it is a rule which should ordinarily be adhered to by this and all
other South
African Courts before whom constitutional issues are raised.”
[83]
[150]
The present case has highlighted another matter that I consider
necessary to comment on.  It relates to the procedure followed
by the High
Court in this matter.  As indicated, the application was brought on an
urgent basis.  This means that the time
within which the respondents were
entitled to respond in terms of the Uniform Rules of Court was drastically
curtailed.  Ordinarily,
they would have been entitled to a period of five
court days within which to file a notice of intention to defend and fifteen
days,
from the date of filing the notice, within which to file answering
affidavits.
[84]
Save for the fact that the
State Attorney was served with the papers, it does not appear from the record
whether the MEC was
served with the urgent application despite the fact that a
mandatory order was sought to compel him to comply with the order in question.
[85]
[151]
It needs to be mentioned that the applicant also lodged a notice in
terms of Rule 16A(1) of the Uniform Rules,
[86]
for
an order declaring section 3 unconstitutional.  The notice was displayed
on the notice board at the High Court.  The
purpose of the Rule, as stated
by this Court in
Shaik
,
[87]
is as follows:
“[To] bring [the notice] to the attention
of persons (who may be affected by or have a legitimate interest in the case)
or the particularity
of the constitutional challenge, in order that they may
take steps to protect their interests.  This is especially important
in
those cases where a party may wish to justify a limitation of a chap 2 right
and adduce evidence in support thereof.”
The correspondence referred to
earlier between the State Attorney and the applicant’s attorneys clearly
indicates that the former
had been served with the papers.  The papers
before us however reveal that the MEC had not been made aware of the
proceedings
even though a
mandamus
had been sought against him.
Bearing in mind that the applicant also sought a declaration of constitutional
invalidity of section
3, the High Court should, respectfully, have been slow in
granting the default judgment which entails declaring that section invalid
without the benefit of submissions by parties interested in the constitutional
issue raised.  This Court has correctly cautioned
against courts readily
declaring legislation invalid.
[88]
I accept that
there was urgency in respect of the
mandamus
in this case but am
doubtful that urgency was established in respect of the declaration of
constitutional invalidity.
Conclusion
[152]
For all these reasons, I am not persuaded that the impugned section,
properly construed and applied, is inconsistent with the Constitution.
However, I am of the view that this Court is at liberty, given the
circumstances of this case and the legitimate concerns of judgment
creditors as
a result of the widespread perennial non-compliance with court orders by public
officials, to deal with the matter beyond
the relief sought by the applicant in
this case.  Apart from the fact that recalcitrant civil servants might be
subjected to
disciplinary action, meaningful proactive steps must be taken to
stamp out the unconstitutional and objectionable conduct on the
part of those
concerned.  Sadly, the applicant in this case died before he was paid what
was legitimately due to him.
He could not obtain medical treatment which
he sorely needed due to egregious conduct by state officials who failed to
discharge
their duties in accordance with the law and values of our
Constitution.  Accordingly, I support the order proposed by Madala
J at
paragraphs 3, 4 and 5.
Order
[153]
In the result, I would refuse to confirm the order declaring the
impugned portion of
section 3
of the
State Liability Act 20 of 1957
to be
inconsistent with the Constitution.  I would make an order similar to the
order set out in paragraphs 3, 4 and 5 of the
order of Madala J.
Langa CJ and Mpati AJ concur in the
judgment of Nkabinde J.
Counsel for the
Applicant
Advocate RG Tolmay SC, Advocate CFJ Brand and Advocate A Granova instructed by
Adele van der Walt Attorneys Inc.
Counsel for the First
Respondent
Advocate
NM Arendse SC and Advocate HOR Modisa instructed by The State
Attorney, Pretoria.
Counsel for the Second
Respondent           Advocate
P Kennedy SC and Advocate S
Hassim instructed by The State Attorney, Pretoria.
Counsel for the Amicus
Curiae
Advocate P Hoffman SC and Advocate N de Havilland instructed by Bowman Gilfillan
Inc.
[1]
Nyathi v MEC for the Department of Health, Gauteng and Another
, 26014/2005 TPD, 30 March 2007, unreported.
[2]
Section 172(2)(a) states:
“The
Supreme Court of Appeal, a High Court or a court of similar status may make an
order concerning the constitutional validity of
an Act of Parliament, a
provincial Act or any conduct of the President, but an order of constitutional
invalidity has no force unless
it is confirmed by the Constitutional Court.”
[3]
Section 167(5) states:
“
The Constitutional Court makes the final decision
whether an Act of Parliament, a provincial Act or conduct of the President is
constitutional,
and must confirm any order of invalidity made by the Supreme
Court of Appeal, a High Court or a court of similar status, before that
order
has any force.”
[4]
20 of 1957.
[5]
Section 2 of the Act provides:
“(1)         In any action
or other proceedings instituted by virtue of the provisions of
section one, the
Minister of the department concerned may be cited as nominal defendant or
respondent.
(2)           For
the purposes of subsection (1), ‘Minister’ shall, where appropriate,
be
interpreted as referring to a member of the Executive Council of a province.”
[6]
Rule
34
A of the Uniform Rules of
Court states:
“In an action for damages for personal
injuries or the death of
a person, the plaintiff may, at any
time after the expiry of the period for the delivery of the notice of intention
to defend, apply
to the court for an order requiring the defendant to make an
interim payment in respect of his claim for medical costs and loss of
income
arising from his physical disability or the death of
a pers
on.”
[7]
Act 1 of 1910.
[8]
See
Schierhout
v Minister of Justice
1926 AD 99
at 111 where it was held:
“But the Legislature was content to rely upon the
moral obligation which the decree of a Court was bound to exert.  No
process
of any kind was to be exercised as against Crown representatives or
Crown property.”
[9]
See the case of
Poindexter v Greenhow
[1885] USSC 143
;
114 US 270
(1885), 291
where the following is said as regards state immunity and a democratic
government:
“Of what avail are written
constitutions whose bills of right for the security of individual liberty have
been written, too often,
with the blood of martyrs shed upon the battle-field
and the scaffold, if their limitations and restraints upon power may be
overpassed
with impunity by the very agencies created and appointed to guard,
defend, and enforce them; and that, too, with the sacred authority
of law, not
only compelling obedience, but entitled to respect?  And how else can
these principles of individual liberty and
right be maintained, if, when
violated, the judicial tribunals are forbidden to visit penalties upon
individual offenders, who are
the instruments of wrong, whenever they interpose
the shield of the State?  The doctrine is not to be tolerated.  The
whole
frame and scheme of the political institutions of this country, State and
Federal, protest against it.  Their continued existence
is not compatible
with it.  It is the doctrine of absolutism, pure, simple, and naked”.
[10]
Rule 10A of the Uniform Rules of Court states:
“If in any proceedings before the
court, the constitutional validity of a law is challenged, the party
challenging the validity of
the law shall join the provincial or national
executive authorities responsible for the administration of the law in the
proceedings.”
[11]
Rule 16A(1)(a) of the Uniform Rules of Court provides:
“Any
person raising a constitutional issue in an application or action shall give
notice thereof to the registrar at the time of filing
the relevant affidavit or
pleading.”
[12]
Above n 1 at para 3.6.
[13]
Id at para
7.
[14]
Above n1 at
para 23.
[15]
Section 34 states:
“Everyone
has the right to have any dispute that can be resolved by the application of
law decided in a fair public hearing before
a court or, where appropriate,
another independent and impartial tribunal or forum.”
[16]
Section 165(5) states:
“An order
or decision issued by a court binds all persons to whom and organs of state to
which it applies.”
[17]
Section 195(1) states:
“Public administration must be governed
by the democratic values and principles enshrined in the Constitution,
including the following
principles:
. . . .
(f)
Public
administration must be accountable.”
[18]
See also
York Timbers Ltd v Minister
of Water Affairs and Forestry
2003 (4) SA 477
(TPD);
[2003] All SA 710
(T)
at 506, where it was stated that:
“
Section
3
of the
State Liability Act (properly
interpreted) is inconsistent with State
officials being committed for contempt of court in the exercise of the court’s
inherent power
to protect and regulate its process and is inconsistent with the
provisions of section 195(1)(f) of the Constitution that public
administration
must be accountable.”
See also
Chief Lesapo v North West
Agricultural Bank and Another
[1999] ZACC 16
;
2000 (1) SA 409
(CC); 1999
BCLR (12) 1420 (CC) at para 13 where it was held that:
“An
important purpose of s34 is to guarantee the protection of the judicial process
to persons who have disputes that can be resolved
by law. Execution is a means
of enforcing a judgment or order of Court and is incidental to the judicial
process.”  (Footnotes
omitted.)
[19]
Matiso and Others v Minister of
Defence
2005 (6)
SA 267
(Tk);
Mjeni v Minister of Health and Welfare, Eastern Cape
2000
(4) SA 446
(Tk).
[20]
Kate v MEC for the Department of Welfare, Eastern Cape
2005 (1) SA 141
(SE);
[2005] 1 All SA 745
(SE).
[21]
Id at para
22.
[22]
Section 213(2) of the Constitution provides:
“Money
may be withdrawn from the National Revenue Fund only—
(a)           in
terms of an appropriation by an Act of Parliament; or
(b)           as a
direct charge against the National Revenue Fund, when it is provided
for in the
Constitution or an Act of Parliament.”
[23]
For example, in Australia, section 65 of the Judiciary Act 1903
provides:
“No
execution or attachment or process in the nature thereof shall be issued
against the property or revenues of the Commonwealth
or a State in any such
suit; but when any judgment is given against the Commonwealth or a State, the
Registrar or other appropriate
officer shall give to the party in whose favour
the judgment is given a certificate in the form of the schedule, or to a like
effect.”
Section 66 of the same Act provides:
“On
receipt of the certificate of a judgment against the Commonwealth or the State,
the Minister of Finance or the Treasurer of the
State as the case may be shall
satisfy the judgment out of the monies legally available.”
In the United Kingdom, section 25 of the Crown
Proceedings Act 1947 precludes the execution or attachment of state
assets.  In
Canada, the Crime Liability and Proceedings Act (RS1985 C50)
also precludes execution on a judgment against the Crown.
[24]
Whilst section
8 of Tonga’s Crown Proceedings Act [Cap 13] precludes execution, section 9
thereof enjoins the Minister of Finance
to satisfy the judgment on production
of the certificate.  Western Australia through section 10 of the Crown
Suits Act 1947
and British Columbia through section 13 of the Crown Proceedings
Act [RSBC 1996] both preclude execution.  However, they both
allow for the
payment of such debts from the Consolidated Fund on production of the
certificate.
[25]
Act 1 of 1999.
[26]
Magidimisi NO v Premier of the
Eastern Cape and Others
, 2180/04, 25 April 2006,
unreported.
[27]
Id at para 29.
[28]
See above n 2.
[29]
[1998] ZACC
6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC) at para 31.
[30]
See above n 19 at 452G-H and
453C-D.
[31]
2001 (3) SA
1133
(Ck) at para 20;
[2000] 4 All SA 443
(Ck) at para 21.
[32]
See
S v Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 144 where this Court found
that
:
“The rights to life and dignity are
the most important of all human rights, and the source of all other personal
rights in chapter
3.  By committing ourselves to a society founded on the
recognition of human rights we are required to value these two rights
above all
others.”
[33]
See section 7(2) of the Constitution
which provides that the state must respect, protect, promote and fulfil the
rights in the Bill
of Rights.
[34]
Section 36(1) states that:
“The rights in the Bill of Rights may
be limited only in terms of law of general application to the extent that the
limitation is
reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom, taking into account all
the relevant
factors, including—
(a)
the nature of the right;
(b)
the importance of the purpose of the limitation;
(c)
the nature and extent of the limitation;
(d)
the relation between the limitation and its purpose; and
(e)           less
restrictive means to achieve the purpose.”
[35]
See De Waal and Currie
The Bill of Rights Handbook
5ed
(Juta,
Cape Town 2005) at 176.
[36]
S v Bhulwana
[1995] ZACC 13
;
1996 (1) SA
388
(CC);
1996 (12) BCLR 1579
(CC).
[37]
Id at para
18.
[38]
For example, Queensland’s Crown Proceedings Act 1980 section 11(1)
and (2) allows for execution of state assets except:
“(1)
A judgment for or of money, damages or costs in a proceeding against the Crown
shall be satisfied by the Treasurer by payment out of money—
(a)           in the
Treasurer’s hands for the time being, lawfully applicable
thereto; or
(b)           that
may be appropriated by Parliament for that purpose.
(2)           Where
payment specified in subsection (1) is not duly made by the Treasurer,
execution may be had and levied by distress and sale on any property vested in
Her Majesty in right of the State of Queensland other
than—
(a)           all
property used, held, occupied or enjoyed or intended so to be
by the Governor
for the time being;
(b)           the
parliamentary buildings at Brisbane and all property therein or
appertaining
thereto or used or occupied therewith for the purposes of Parliament or of the
Legislative Assembly;
(c)
Supreme Court houses and other court houses and offices pertaining
thereto;
(d)           All
corrective services facilities within the meaning of the Corrective
Services
Act, 2006 and all property therein or appertaining thereto or used or occupied
therewith.”
[39]
See above n 18, 19 and 20.
[40]
Treasury
Regulations in GN R225, GG 27388, 15 March 2005.
[41]
The preamble to the PFMA is as follows:
“To regulate financial management in
the national government; to ensure that all revenue, expenditure, assets and
liabilities of that
government are managed efficiently and effectively; to
provide for the responsibilities of persons entrusted with financial management
in that government; and to provide for matters connected therewith.”
[42]
Regulation 8.2.3 states:
“Unless
determined otherwise in a contract or other agreement, all payments due to
creditors must be settled within 30 days from receipt
of an invoice or, in the
case of civil claims, from the date of settlement or court judgment.”
[43]
It is submitted by the respondents that the provisions of the PFMA
read together with the Treasury Regulations—
“impose
an obligation on public administration, and the accounting officer of the
relevant department in particular, under pain of
criminal sanction and
disciplinary action, to pay all debts owed by the state – including judgment
debts – within thirty days.”
[44]
See above n 18, 19 and 20.
[45]
See the dictum of Mokgoro J in
Chief Lesapo
above n 18, at
415B-G;
1999 BCLR 1420
(CC) where she remarked:
“A trial or hearing before a court or
tribunal is not an end in itself.  It is a means of determining whether a
legal obligation
exists and whether the coercive power of the State can be
invoked to enforce an obligation, or prevent an unlawful act being committed.”
. . . .
An
important purpose of s34 is to guarantee the protection of the judicial process
to persons who have disputes that can be resolved
by law.  Execution is a
means of enforcing a judgment or order of court and is incidental to the
judicial process.  It
is regulated by statute and the Rules of Court and
is subject to the supervision of the court which has an inherent jurisdiction
.
. .”  (Footnotes omitted.)
[46]
See above n 18, at 452C – 453H.
[47]
Id.
[48]
The debt was referred to the Pretoria Academic Hospital, which according to Circular 17 of 2003 issued by the Head of
Department,
was responsible for payment of the debts arising out of any claims
against the hospital.  The circular provides that as from
1 April 2003 the
institutions and components where the cause of a claim or litigation arises,
will be required to pay such costs
from their budget.
[49]
South African Liquor Traders Association and Others v Chairperson,
Gauteng Liquor Board and Others
[2006] ZACC 7
;
2006
(8) BCLR 901
(CC).
[50]
Id at para
52.
[51]
Id a
t para 54.
[52]
Id.  See also para 48, where O’Regan J quotes from
Nel v
Waterberg Landbouwers Ko-operatiewe Vereeniging
1946 AD 597
at 607:
“The
true explanation of awards of attorney and client costs not expressly
authorised by Statute seems to be that, by reason of special
considerations
arising either from the circumstances which give rise to the action or from the
conduct of the losing party, the court
in a particular case considers it just,
by means of such an order, to ensure more effectually than it can do by means
of a judgment
for party and party costs that the successful party will not be
out of pocket in respect of the expense caused to him by the litigation.”
[53]
Regulation 33.2 read with section 86 of the PFMA provide for
criminal proceedings to be instituted against an accounting officer.
Section 86 of the PFMA provides as follows—
“(1)
An accounting officer is guilty of an offence and liable on conviction to a
fine,
or to imprisonment for a period not exceeding five years, if that
accounting officer wilfully or in a grossly negligent way fails
to comply with
a provision of section 38, 39 or 40.
(2)
An accounting authority is guilty of an offence and liable on conviction
to a
fine, or to imprisonment for a period not exceeding five years, if that
accounting authority wilfully or in a grossly negligent
way fails to comply
with a provision of section 50, 51 or 55.”
Regulation 33.2.1 provides—
“The accounting
authority must advise the Auditor-General and the relevant executive authority
and treasury of any criminal charges
it has laid against any person in terms of
section 86 of the Act.”
Regulation 33.2.2 provides—
“The executive authority or relevant
treasury may direct a public entity to lay charges of criminal financial
misconduct against any
person should an accounting authority fail to take
appropriate action.”
[54]
See
Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA)
at para 8, where the Supreme Court of Appeal considered contempt proceedings
and had the following to say as regards the institution
of contempt
proceedings:
“In the
hands of a private party, the application for committal for contempt is a
peculiar amalgam, for it is a civil proceeding that
invokes a criminal sanction
or its threat.  And while the litigant seeking enforcement has a manifest
private interest in securing
compliance, the court grants enforcement also
because of the broader public interest in obedience to its orders, since
disregard
sullies the authority of the courts and detracts from the rule of
law.”  (Footnotes omitted.)
[55]
Id at para 42(c) where the court held that the standard of proof
required for civil contempt of court proceedings is one of proof
beyond a
reasonable doubt.  I agree that the standard of proof required as found by
the Supreme Court of Appeal is correct but
it is necessary to consider here
that the onus placed on the creditor is immense and involves proving the
highest standard of proof
in our law.  This onerous burden cannot be
placed on a judgment creditor who seeks the enforcement of a debt already
proven
in a court of law.
[56]
M v Home Office
[1993] UKHL 5
;
[1993] 3 All ER 537
at
540.
[57]
Section 25(4) of the Crown Proceedings Act 1947 provides:
“Save as aforesaid no execution or
attachment or process in the nature thereof shall be issued out of any court
for enforcing payment
by the Crown of any such money or costs as aforesaid, and
no person shall be individually liable under any order for the payment
by the
Crown, or any Government department, or any officer of the Crown as such, of
any such money or costs.”
[58]
Section 173
provides that:
“The Constitutional Court,
Supreme Court of Appeal and High Courts have the inherent power to prot
ect and regulate their own process,
and to develop the common law, taking into account the interests
of justice.”
[59]
Section 1 of
the Constitution states that:
“The Republic of South Africa is one, sovereign,
democratic state founded on the following values:
(a)
Human dignity, the achievement of equality and the advancement of
human rights
and freedoms.
(b)
Non-racialism and non-sexism.
(c)
Supremacy of the constitution and the rule of law.
(d)
Universal adult suffrage, a national common voters roll, regular elections
and
a multi-party system of democratic government, to ensure accountability,
responsiveness and openness.”
[60]
Minister of Finance v Barberton Municipal Council
1914 AD 335
at 353-355 where Innes JA made the following remarks in
reference to the Crown Liabilities Act:
“But the statute seems to me to
proceed upon the lines of granting to the courts jurisdiction to entertain
actions against the Crown,
but treating the resulting decrees as not legally,
but only morally binding upon the nominal defendant.  Even in the case of
judgments for money the minister ‘may cause’ the amounts to be paid out of the
Consolidated Fund, but he is not legally bound to
do so.
. . . .
The object clearly was to ensure that
judgments given against the Crown should not be enforced by legal process.
. . . .
The legislature has been content to
rely upon the moral obligation which such decrees are bound to exercise upon
all concerned.”
[61]
Above [42].
[62]
In
Fose v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC);
1997 (7) BCLR 851
(CC) at para 19 this Court held that—
“[a]ppropriate
relief will in essence be relief that is required to protect and enforce the
Constitution.  Depending on the circumstances
of each particular case the
relief may be a declaration of rights, an interdict, a
mandamus
or such
other relief as may be required to ensure that the rights enshrined in the
Constitution are protected and enforced.
If it is necessary to do so, the
courts may even have to fashion new remedies to secure the protection and
enforcement of these all-important
rights.”  (Footnote omitted.)
[63]
See
Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) at
para 46, where the following was quoted in reference to the concept of
deference in regard to administrative action:
“[A] judicial willingness to
appreciate the legitimate and constitutionally-ordained province of
administrative agencies; to admit
the expertise of those agencies in
policy-laden or polycentric issues; to accord their interpretation of fact and
law due respect;
and to be sensitive in general to the interests legitimately
pursued by administrative bodies and the practical and financial constraints
under which they operate.  This type of deference is perfectly consistent
with a concern for individual rights and a refusal
to tolerate corruption and
maladministration.  It ought to be shaped not by an unwillingness to
scrutinise administrative action,
but by a careful weighing up of the need for
– and the consequences of – judicial intervention.  Above all, it ought to
be shaped
by a conscious determination not to usurp the functions of
administrative agencies”.
[64]
Id.
[65]
Rule 16(2) provides as follows:
“A person
or organ of state entitled to do so and desirous of appealing against such an
order in terms of section 172(2)(d) of the
Constitution shall, within 15 days
of the making of such order, lodge a notice of appeal with the Registrar and a
copy thereof with
the Registrar of the court which made the order, whereupon
the matter shall be disposed of in accordance with directions given by
the
Chief Justice.”
[66]
Rule 16(5) provides as follows:
“If no notice or application as
contemplated in subrules (2) and (4), respectively, has been lodged within the
time prescribed, the
matter of the confirmation of the order of invalidity
shall be disposed of in accordance with directions given by the Chief Justice.”
[1]
Act 20 of
1957.
[2]
Nyathi v
MEC, Department of Health, Gauteng and Another
Case No. 26014/2005, 30
March 2007, unreported.
[3]
See for example
Mjeni v Minister of Health and Welfare,
Eastern Cape
2000 (4) SA 446
(TkHC) at 454A-G;
East London Transitional
Council v MEC for Health, Eastern Cape and Others
2001 (3) SA 1133
(Ck);
[2000] 4 All SA 443
(Ck) at paras 19-21;
Federation of Governing Bodies of
South Africa (Gauteng) v MEC Education, Gauteng
2002 (1) SA 660
(T) at
678G-679H;
Lombard v Minister van Verdediging
2002 (3) SA 242
(T) at
246G-H.
[4]
See for
example
Magidimisi and Others v The Premier, Eastern Cape and Others
Case No. 2180/04, 25 April 2006, unreported.
[
5
]
2004 (2) SA 611
(SCA); [2004] 1 BPLR 5348 (SCA);
[2003] 2 All SA 223
(SCA).
[6]
Id a
t paras 14-15, 22-23.
[7]
[2006] ZASCA 49
;
2006 (4) SA
478
(SCA);
[2006] 2 All SA 455
(SCA).
[8]
Id a
t para 30.
[9]
Jayiya
above
n 5 at para 18.
[10]
Rule 7(2)
provides:
“Where an authorised or
other competent person has been so appointed, the Court may, on application,
order that such authorised or
competent person be substituted for the party who
has so died or become incompetent.”
[11]
The Minister is the national executive authority responsible for
the administration of the Act.  The purpose of joining the
Minister was to
enable her to advance submissions pertaining to the constitutionality of the
impugned legislative provision.
[12]
Rule 10A
reads:
“If, in any proceedings
before the court, the constitutional validity of a law is challenged, the party
challenging the validity of
the law shall join the provincial or national
executive authorities responsible for the administration of the law in the
proceedings.”
[13]
The capital
amount of the claim was paid on 25 June 2007, supposedly after the intervention
of this Court.
[14]
The official
who handled the case in the MEC’s department was a Mr Sithole.
[15]
Rule 34A(1),
insofar as is relevant, provides:
“In an action for damages for personal injuries or the
death of a person, the plaintiff may, at any time after the expiry of the
period
for the delivery of the notice of intention to defend, apply to the
court for an order requiring the defendant to make an interim
payment in
respect of his claim for medical costs and loss of income arising from his
physical disability or death of a person.”
[
16
]
Above n
7 at para 30.
[
17
]
Above n 2 at
para 3.7.1.
[18]
Id.
[19]
Id
at para 30.
[20]
Above n
5
at paras 14-15.  The application in
Jayiya
was for committal for non compliance with an order for payment of a certain lump
sum of money with interest claimed by way of constitutional
damages.  The
Court held that the application for committal was misconceived in a number of
respects.
[21]
Above n 2 at
para 7.
[22]
2006 (6) SA 575
(D&CLD) at paras 28-29.
[23]
2003 (4) SA 477
(T) at 500I-501A;
[2003] 2 All SA 710
(T) at 731d-f.
[24]
2005 (1) SA 141
(SE);
[2005] 1 All SA 745
(SE) at para 21.
The
Court in this matter sought to overcome the prohibition contained in the Act by
reading and interpreting
Jayiya
so as to allow for an “adapted common
law rule of civil contempt shorn of its criminal elements of punishment, in the
form of a declaratory
order that a state functionary is in contempt of a court
order.”
[25]
2005 (6) SA
267
(TkD) at para 19.  The Court held that an application for committal
for contempt of court as a means of enforcing a money judgment
against the
state is precluded by section 3 of the Act.
[26]
Act 1 of
1910, the predecessor of the Act.
[27]
Above n 2 at
para 10.
[28]
Id.
[29]
1926 AD 99.
In that case the Court, per Innes CJ, considered the provisions of the
Crown Liabilities Act 1 of 1910 and the enforcement
of orders made pursuant to
that legislation.
[30]
Id at
110-11.  The passage is also quoted by the High
Court, above n 2 at para 10.
[31]
[2001] ZACC 17
;
2001 (3) SA 409
(CC);
2001 (5) BCLR 449
(CC).
[32]
Id
para 16.
[33]
Section 34
of the Constitution states:
“Everyone has the right to
have any dispute that can be resolved by the application of law decided in a
fair public hearing before
a court or, where appropriate, another independent
and impartial tribunal or forum.”
[34]
Above n 2 at
paras 13 and 19.
[35]
Section
165(5) of the Constitution states:
“An order or decision
issued by a court binds all persons to whom and organs of state to which it
applies.”
[36]
Section
195(1) of the Constitution requires that the public administration must be
governed by the democratic values and principles
enshrined by the
Constitution.  Subsection 195(1)(f) specifically requires that the public
administration must be accountable.
[37]
The outline
of the applicant’s cause of action is quoted in full at para 12 above.
[38]
Above n 2 at
para 26.
[39]
Treasury
Regulations published in GN R225, GG 27388, 15 March 2005.  Para 8.2.3 of the Regulations reads:
“Unless determined otherwise in a contract or other
agreements, all payments due to creditors must be settled within 30 days as
from
receipt of an invoice or, in the case of civil claims, from the date of
settlement or court judgment.”
[40]
Above n 4.
[41]
[2001] ZACC 8
;
2002 (5) SA 246
(CC);
2002
(8) BCLR 810
(CC);
2002 (2) SACR 222
(CC).
[42]
Id
para 88.
[43]
[1995] ZACC 7
;
1995 (4) SA 631
(CC);
1995 (10) BCLR 1382
(CC).
[44]
Id para 9.
[45]
[2003] ZACC 24
;
2004 (3) SA 599
(CC);
2004 (4) BCLR 333
(CC).
[46]
Id para 23.
[47]
[1995] ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at para 26.
[48]
Above n 45 at para 27.
[49]
Id.
[50]
Above n 35 and n 36.
[51]
Section 1 of the Act reads:
“Any claim against the
State which would, if that claim had arisen against a person, be the ground of
an action in any competent court,
shall be cognizable by such court, whether
the claim arises out of any contract lawfully entered into on behalf of the
State or out
of any wrong committed by any servant of the State acting in his
capacity and within the scope of his authority as such servant.”
Section 2(1) of the Act reads:
“In any action or other
proceedings instituted by virtue of the provisions of section one, the Minister
of the department concerned
may be cited as nominal defendant or respondent.”
[52]
The issued
circular addressed three issues, namely: budgetary responsibility for costs of
claims and litigation, ways of mitigating
such risks and management of claims
and risks generally.  A portion of the circular reads:
“[A]s from 1 April 2003
the institutions and components where the cause of a claim or litigant arises,
will be required to pay such
costs from their budget.”
[53]
Assistant State Attorney, responsible for handling the matter.
[54]
Above n 2 at
para 13.
[55]
[1999] ZACC 16
;
2000 (1) SA 409
(CC);
1999 (12)
BCLR 1420
(CC).
[56]
Id at
para 13.
[57]
[2005] ZACC 5
;
2005 (5) SA 3
(CC);
2005 (8) BCLR 786
(CC).
[58]
Id at
para 41.
[59]
Id at para 43.
[60]
Section 38, insofar as is relevant, reads:
“(1)
The accounting officer for a department, trading entity or constitutional
institution—
. . . .
(d)           is
responsible for the management, including the safeguarding and
the maintenance
of the assets, and for the management of the liabilities, of the department,
trading entity or constitutional institution;
(e)           must
comply with any tax, levy, duty, pension and audit commitments
as may be
required by legislation;
(f)
must settle all contractual obligations and pay all money owing,
including
intergovernmental claims, within the prescribed or agreed period.
[61]
Treasury
Regulations published in GN R225, GG 27388, 15 March 2005.  Para 8.2.3 of the Regulations provides:
“Unless determined otherwise in a contract or other
agreement, all payments due to creditors must be settled within 30 days as from
receipt of an invoice or, in the case of civil claims, from the date of
settlement or court judgment.”
[62]
Section 9(1)
provides:
“Everyone is equal before
the law and has the right to equal protection and benefit of the law.”
[63]
Above n 2 at paras 4-5.
[64]
[1997] ZACC 5
;
1997 (3) SA 1012
(CC);
1997
(6) BCLR 759
(CC).
[65]
Id a
t paras 25-26.
[66]
A
bove n 57 at para 43.
[67]
Notably, t
he remarks were made after the finding that
section 3 was unconstitutional and in the context of exercising the discretion conferred
on courts in terms of section 172 of the Constitution.
[68]
Above n 2 at
para 28.
[69]
In that
case, the applicant was one of the many litigants in the Eastern Cape Province
who had chosen to litigate over their social
welfare entitlements.  Jayiya
failed in his attempt to have the responsible officials concerned held in
contempt of court for
the failure to pay him in terms of the money judgment
against the provincial government.  The Supreme Court of Appeal was not
persuaded that it is competent to bring contempt proceedings in circumstances
in which a mere money judgment has been obtained.
[70]
Such
impracticality is illustrated by the Supreme Court of Appeal
in
Kate
above
n 7 at paras 28-31.
[71]
A
litigant would however, in an appropriate case, not
necessarily have to bring separate proceedings
after the
initial proceedings have resulted in a judgment debt not being satisfied.
The litigant may simply supplement the papers
in the initial proceedings.
Remarkably, the applicant in this case had, consistently with views expressed
in
Kate
by the Supreme Court of Appeal, applied for a
mandamus
(on
an urgent basis)
and for an order permitting him to approach the High
Court on the same papers, amplified where necessary, for an order declaring the
MEC to be in contempt of court.
[72]
Above n 2 a
t para 26.
[73]
Id at
para 27.
[74]
See
Shaik
above
n 45 at para 23.
[75]
Above n 7
a
t para 29.
[76]
Above n 2
at para 26.
[77]
Above n 4 at para 39
.  In that case the applicant and
his co-applicants had unsatisfied long outstanding judgments sounding in money
in their favour
against the provincial government in the Eastern Cape.
They applied, inter alia, for a
mandamus
directing the officials
concerned to take steps to effect payment in satisfaction of the money judgment
in their favour.  The
High Court innovatively granted a coercive relief
coupled with a supervision order requiring a report to the court as to the
progress
in respect of implementation of the
mandamus
and the threat of
contempt proceedings in the event of non-compliance.
[78]
[1997] ZACC 6
;
1997 (3) SA 786
(CC);
1997 (7) BCLR 851
(CC).
[79]
Id
para 19.
[80]
Id at
para 69.  See also
Kate
above n 7 at para
25.
[81]
S v
Mhlungu and Others
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995 (2) SACR 277
(CC);
1995 (7) BCLR 793
(CC) at para 59.
[82]
[1995] ZACC 9
;
1995 (4) SA 615
(CC);
1995 (10) BCLR 1424
(CC).
[83]
Id at
paras 4-5.
[84]
See Rule
6(5)(b) and (d)(ii) of the Uniform Rules.
[85]
What appears from the record is that Form 2(a) in the First
Schedule of the Uniform Rules was not used.  Moreover, it does not
appear
that the applicant had asked the Court to dispense with the forms and services
provided for in the Rules.
Rule 6(12)(a) of the Uniform
Rules reads:
“In urgent applications
the court or a judge may dispense with the forms and service provided for in
these rules and may dispose of
such matter at such time and place and in such
manner and in accordance with such procedure (which shall as far as practicable
be
in terms of these rules) as to it seems meet.”
[86]
Rule 16A(1) provides:
“(a)         Any person
raising a constitutional issue in an application or action shall give
notice
thereof to the registrar at the time of filing the relevant affidavit or
pleading.
(b)           Such
notice shall contain a clear and succinct description of the constitutional
issue concerned.
(c)           The
registrar shall, upon receipt of such notice, forthwith place
it on a notice
board designated for that purpose.
(d)
The notice shall be stamped by the registrar to indicate the date
upon which it
was placed on the notice board and shall remain on the notice board for a
period of 20 days.”
[87]
Above n 45 at para 24.
See also
Fourie and Another
v Minister of Home Affairs and Others
2005 (3) SA 429
;
2005 (3) BCLR 241
(SCA) at para 55.
[88]
See
Shaik
above n 45 at para 23.